Race, Gender, and Affirmative Action

Resource Page for Teaching and Study

Updated July 2008

Introduction

This is an annotated bibliography of resources on race, gender, and
affirmative action intended for the use of faculty who are designing
courses concerning race, gender, and affirmative action, and for
students and browsers interested in a guide to the
literature.
This bibliography cites three types of sources: (1) short,
accessible articles suitable for undergraduate teaching (noted with an
asterisk); (2) longer and more technical works useful for graduate
instruction or faculty reference; (3) sources available on the web
(underlined, with links). The literature on race, gender, and
affirmative action is much too vast to cover on any website.
This
bibliography aims to identify a few exemplary works for each identified
theme, concentrating on works that are representative
of the
literature, particularly suitable for teaching or
for providing
faculty with a background on the issues, and that are especially
relevant for assessing the arguments for and
against
affirmative action policies. Because this bibliography is thematically
organized, the same work may appear more than once, sometimes with page
references to the portion of the work particularly focused on the given
theme. The focus is on race, particularly on whites and
blacks in
the U.S., although gender and class are also briefly considered.

Concepts of Race,
Gender, and other Social
Groups

Concepts of race, gender, and other ascriptive
identities
(e.g., ethnicity, caste) are understood and used in different
ways. Because the same words are used to refer to different
conceptions of these identities, confusion is apt to result when
speakers don't realize that they are using these words with different
senses. For instructional purposes, it is therefore
worthwhile to
survey and address students' understandings of these concepts and to
explicitly define your own use of these concepts. Concepts of
race, gender and other ascriptive identities are "cluster"
concepts: they refer to disparate elements, and not all uses
of
the concept need include every element.

For example, consider the concept of
"race." Any
concept purporting to be "racial" must include the
following
elements: (a) body type differences (real
or
imagined): primarily, skin color, but also hair texture,
color,
and distribution, stature, musculature, differences in expression of
sexual characteristics, etc.; (b) ancestry (real
or
imagined): "racial" identity is passed on from parents to
children in a lineage (although how identity is passed on may
vary--e.g., from ideas of mixed-race to the contrasting "one drop" rule
of hypodescent, according to which anyone with a
black ancestor
is black); and (c) geographical territory of origins
(real or
imagined): in the U.S., membership in a racial group is
defined
by the continent in which one's ancesters, prior to the era of European
colonialism, were born (whites from Europe, blacks from Africa,
etc.). Racial concepts were more fine-grained in the 19th and
early 20th c., corresponding more closely to ideas of ethnicity or
nationality--e.g., Semites, Celts, Slavs. Note that one could have a
concept of race which identifies ideas (a)-(c) as imaginary or
arbitrary, just as one can have a concept of a "unicorn," understood to
be an imaginary animal, or a concept of "countries lying on
0&deg; longitude," which, while it refers to real entities, is
entirely arbitrary. Thus, one's concept of race need not
endorse
the reality of races. Skeptics about human races generally
believe that some of the features ascribed to different races are
imaginary (for example, the idea, held by some Americans, that blacks
have an extra muscle in their foot), but more importantly, that the
grouping of individuals into "races" is arbitrary--as arbitrary as
political boundaries.

Although (a)-(c) constitute necessary elements of
anything
that can count as a racial concept, what makes the concept of "race" so
politically consequential is the additional elements that may go along
with it: (d) cultural differences (real
or
imagined): superficially, in preferences over food, dress,
music,
etc.; more consequentially, in religion, levels of "civilization,"
values, virtues and vices (e.g., work ethic, aggression); (e) biological
subspecies: the idea that ancestry defines
genetically
distinct and isolated breeding populations that have different body
types and different capacities or dispositions for manifesting
culturally valued or disvalued traits; (f) actual social
stratification: the idea that the races are
arranged in a
social hierarchy of power, privilege, prestige, or wealth; (g) normative
social stratification: the idea that the races ought
to be
arranged in a social hierarchy; (h) subjective identity:
individuals' conceptions of themselves as "raced" and affirmation or
repudiation of this identity (e.g., through "passing").

These elements may be linked, and thus support
different uses
of the concept of race. The concept of race may be used
to:

(1) Justify and explain racial hierarchy.
According to theories of biological racism, (a) -
(c) define
(e) human subspecies that have different capacities or dispositions for
(d) culturally valued or disvalued traits and therefore (f) are
and (g) ought to be arranged in a cultural
hierarchy.
Much teaching about race focuses on refuting biological racism,
especially on rejecting (e). But rejecting (e) is not
sufficient
to undermine (g) normative social stratification. For
according
to theories of cultural racism, racial groups
superficially
identified by (a) - (c) constitute (d) distinctive subcultures that
foster different culturally valued and disvalued traits that both (f)
cause and (g) justify social stratification by race. Recent
survey research indicates that most racially prejudiced Americans lean
more towards cultural than biological racism. Thus, attempts
to
undermine (g) by attacking (e) will not go very far.

(2) Explain racial hierarchy without
justifying it:
According to theories of social construction,
racial groups are
artifacts of (f) social systems of subordination and inequality that
are rationalized by racist ideologies. Racial groups exist as
elements of a social hierarchy of birth, although the racial concepts
embedded in racist ideologies are fictitious (refer to nonexistent
biological subspecies (e), or systematically distort the character or
origins of purported cultural differences (d) among racial groups)
and/or arbitrary (reify and naturalize arbitrary political boundaries
in the real or imagined ancestral territories of origin of different
"races"). Ideologically asserted (a) physical, (b) ancestral,
(c)
geographical and (d) cultural differences among races may be real or
imagined, and may be consequences of the system of social
stratification itself. Social constructionist conceptions of
race
reject elements (e) and (g) from their concept of race.

(3) Form a basis of subjective racialized
identity.
Racist conceptions of race supply a relational subjective identity,
based on (g) normative racial hierarchy, which in turn is rationalized
in terms of differentially valued purported (a) physical, (b)
ancestral, (c) geographical and (d) cultural differences among racial
groups. However, liberatory antiracist movements linked to
"identity politics," while rejecting (g), have sometimes also adopted
"essentialist" views of race based on a reinterpretation and
revaluation of purported group differences of types (a)-(d).
Liberatory antiracist movements opposed to (g) may alternatively be
based on subjective identities that conceive of race as socially
constructed. Such identities are justified strategically, and
need not survive the eradication of racism. Eliminate (f) and
(g)
(actual and normative social inequality) as elements of social
structure and subjective understanding, and racial identities might be
transformed into relatively benign bases of cultural or ancestral
affiliation--much as certain varieties of white ethnicity have become
in relation to one another (for example, in the U.S., being of Irish
compared to Scandinavian ancestry).

(4) Justify a principle of "colorblindness":
According to this principle, race is an "irrelevant" characteristic of
individuals and therefore never a justified basis for treating people
differently. This position follows from a conception of race
reduced to (a) - (c) alone. It is evident that (a)
superficial
physical differences, such as skin color, are morally
irrelevant.
And since the demise of aristocracy, which justified the assignment of
rank and privilege according to birth rather than merit, it has become
equally evident that (b) ancestry, (c) linked to a geographical
territory of origins, is a morally irrelevant basis for distributing
basic goods and opportunities. Rejecting (f) is crucial to
the
colorblind position. For if society did in fact
systematically
assign advantages according to race, this would be unjust from a
colorblind point of view, and thus turn a person's race into a morally
relevant characteristic (if membership in certain racial groups means
that one is unjustly disadvantaged, this may justify remedies directed
toward those groups). Advocates of colorblindness either
reject
(d) the idea that there are cultural differences among racial groups,
or advocate individualism: the view that
people should be
judged according to their individual merits, not according to the
stereotypical traits ascribed to or manifested by (many or most but not
all members of) their group.

It is important to keep the distinct
definitions
corresponding to distinct uses of racial concepts clearly in mind when
considering policies that respond to group subordination. For
example, Jim Crow laws in the U.S. singled out blacks, understood as
members of a biological race, for discriminatory treatment.
Compensatory affirmative action policies single out blacks, understood
as occupying disadvantaged social positions in virtue of racist
practices, for favorable treatment. The concept of race upon
which Jim Crow laws were built is a fiction, but the concept of race
upon which affirmative action policies are built reflect a social
reality.

The concept of "race" may be usefully compared to the
concept of "caste." Caste includes, as essential elements,
(b)
ancestry and (f) actual social stratification, and typically also
includes ideas about (a) real or imagined body type differences and (d)
socially significant (sub)cultural differences. Both race and
caste are, fundamentally, modes of constructing social hierarchy on
relations of birth. The key difference is that race
essentially
involves the idea of groups originating in different territories,
whereas members of different castes may be conceived as originating
from the same territory.

Comprehensive Accounts of Racial Concepts

By far the best, most
theoretically
sophisticated available article-length reference, online or in text, on
the concept of race. It stands out for clearly distinguishing
the
many different uses and corresponding definitions of race, and also for
the comparisons it makes with the concept of gender. A
shorter
version of this paper is forthcoming in Nous.

Superb, highly
accessible critique of
historical concepts of race as they figured in natural history and
biology in the U.S. and Europe. Defends subjective racial
identities as contingent bases for affiliation in a postmodern
spirit. Outstanding for its jargon-free exposition, and for
its
critique of the claim that racial identities are marked by distinct
cultures.

Race as a Biological Concept

*Marshall, Gloria. "Racial Classifications: Popular
and
Scientific." In C. Loring Brace and James Metress, eds., Man in
Evolutionary Perspective, 364-72. New York: John Wiley and Sons, 1973.

Exposes the ways in
which supposedly
"scientific" concepts of race relied upon confused popular
representations of racial groups, and how these popular representations
depend upon social rather than biological factors. Useful
discussion of varieties of racial classifications, inside and outside
the U.S.

Classic critique of the
biological concept
of race from a genetic and evolutionary point of view. The
Montague volume in which this appears collects many important articles
from the postwar scientific critique of "scientific" racism.

Excellent online article
on the latest
understanding of human genetics, debunking the idea that the racial
classifications used by different societies have a genetic
basis.
Elegantly explains how this can be true even though there are some
genetically based physical differences (e.g., in skin color) broadly
associated with membership in different groups of people popularly
classified as belonging to different races.

Dissents from
the dominant
social science view that racial categories are social constructs,
arguing that they
have medical significance for understanding the incidence and treatment
of disease. An important dissenting view:
Risch is a leading geneticist at Stanford University.

Very useful
popular article,
that makes a nice complement to Risch et al's more technical article,
above. Offers
a nuanced answer to the question: "If races are defined as
genetically discrete groups, no. But
researchers can use some genetic information to group individuals into
clusters with medical relevance."

Andreasen,
Robin, "A New
Perspective on the Race Debate," British Journal of the
Philosophy of Science 49 (1998): 199-225.
Andreasen,
Robin, "Race: Biological Reality or Social Construct?," British Journal of the
Philosophy of Science 67 (2000): S653-S666.

Andreasen
argues that, given more sophisticated cladistic conceptions of human
population groupings, that a biologically significant concept of race
can be identified consistent
with social constructionist theories of race.

Race as a Social Construct

Explains the difference
between "racial"
and "ethnic" minorities in terms of the circumstances of their
incorporation into the U.S. The groups currently thought of
as
"racial" were "colonized"-- forcibly incorporated by conquest or
kidnapping, deprived of legal equality, forced into subordinated
socioeconomic roles, and deprived of their cultures. By
contrast,
"ethnic" or "immigrant" minorities chose to come to the U.S. (although
they may have been forced out of their home countries, they usually had
a choice of destinations), enjoyed legal equality, and were permitted
to advance and integrate themselves in U.S. institutions after
relatively brief struggle.

Highly accessible
teaching anthology on the
social construction of race and ethnicity in the U.S., paying attention
to the intersections of race and ethnicity with class, gender, and age,
and to public policy controversies. In addition to the
outstanding Blauner article cited above, contains useful articles
discussing the particular experiences of a wide variety of ethnic and
immigrant groups from Asia, Africa, Latin America, and Europe.

Ignatiev, Noel. How the Irish Became White. (New
York :
Routledge, 1995).

Traces one story in the
social construction
of whiteness: the ways Irish immigrants to the U.S. gained access to
the status of whites by advancing their interests at the expense of
African-Americans.

Race/Ethnicity as a Subjective Identity

Explores the social
construction of race
through mixed-race identities. Discusses
reaffirmations of
pure racial categories, suggestions for new multiracial identities, and
arguments for eliminating "race."

Nuanced discussion by a
distinguished
African-American philosopher of the dilemma between separation and
assimilation posed by DuBois and black cultural nationalists.
Rejects the terms of the dilemma, arguing that there is no duty of
blacks to identify or affiliate particularly with other blacks, but
that there may be good reasons to so identify.

In contrast with Boxill,
rejects racial
pride, racial solidarity, and racial loyalty as inappropriate attitudes
to take toward one's race. This paper, along with Boxill's,
above, would make an excellent pair of articles contrasting two points
of view on subjective racial identity.

Chavez, Linda. Out of the Barrio : Toward a New
Politics of
Hispanic Assimilation. (New York: Basic Books, 1992).

Famous attack, by a
conservative Hispanic
political activist, on bilingualism and similar policies aimed at
preserving cultural differences of immigrants from Latin
America.
Defends an assimilationist ideal for Hispanics.

Classic philosophical
discussion of a
color-blind ideal of society. Argues that a sex-blind ideal
is
not as plausible, and considers a pluralist (non-assimilationist)
alternative ideal of society with respect to both sex and race.

*Young, Iris Marion. "Social Movements and the Politics of
Difference," in John Arthur and Amy Shapiro, eds., Campus
Wars:
Multiculturalism and the Politics of Difference (Boulder,
Col.:
Westview, 1995).

Criticizes
assimilationist ideal of
liberation, conceived as the transcendence of group
difference.
Defends liberatory movements that stress "a positive self-definition of
group difference", applying the ideal of a "heterogeneous public" to
cases involving women, American Indians, and non-English speakers in
the U.S. This paper, combined with a selection from
Hollinger,
below, would provide an outstanding pair of papers for teaching
purposes that contrast two distinct visions of multiculturalism.

Contrasts a cosmopolitan
ideal of voluntary
ethno-racial identity with more particularistic conceptions of fixed
social identity that the author takes to characterize much
multicultural discourse and politics. Criticizes the idea
that
ethno-racial identity ought to take precedence over national identity,
while also rejecting ideals of assimilation and "color-blindness."

Interviews with white
American women
explore their racial identities "from the inside". This book
helped shift scholarly work on race toward greater attention to the
"unmarked" white racial identity.

Cosmopolitanism,
Race Eliminativism, and the Ethics of Identity

Recent critiques of
identity politics have led some to advocate eliminativism about
racial concepts--simply dropping them from our conceptual frameworks.
Others have been inspired by such critiques to advocate cosmopolitanism as
an attractive ideal. Cosmopolitanism does not require the
elimination of subjective racial identites, but does require pursuit of
wider identifications. (This notion of cosmopolitanism, tied
to subjective identities, should be distinguished from cosmopolitanism,
understood as an approach to global justice that takes individuals
rather than nations or other collectives as the units of fundamental
moral standing for purposes of judging the justice of the whole world,
and regards principles of justice as including everyone and applying to
everyone.)

Important
attempt to reconcile the claims of individualism and community within a
perfectionist liberal framework that encourages people to engage with
those of different identities.

Appiah, Kwame Anthony. Cosmopolitanism: Ethics in a World of
Strangers. (W.W.
Norton, 2006).

Continuation
of Appiah's argument, above, for a "rooted cosmopolitanism" whereby
each person can simultaneously identify with parochial groups and seek
common identifications on a global scale. A vigorous rebuttal
of critiques of cosmopolitanism.

Nussbaum's
lively defense of a cosmopolitan ideal joined with numerous sharp
critiques, mostly defending more parochial notions of identity.
An excellent introduction to debates on the ethics of
ethno-national vs. cosmopolitan identification.

Incisive
critique of identity politics. Rejects the idea that any
particular identity--especially of the ascriptive (involuntary) sort,
lays a claim on the individual's loyalties, as opposed to others she
might choose. Stresses that we all are subjects of multiple,
overlapping identities and capable of constructing new identities
through engagement with others that may be more valuable than the ones
we are born with.

Argues that,
since races don't exist, and the use of racial concepts is harmful, we
should eliminate racial concepts and racial discourse from our lives.

What are Racism and
Sexism?

"Racism" and "sexism" are probably the most contested
terms
in debates over affirmative action. This is because, while
they
are descriptive terms, they also carry strong evaluative
implications. Few people are willing to apply these terms to
beliefs, attitudes, or practices that they do not condemn.
Consequently, disputes over definition flow from disagreements about
what is wrong with racism and sexism. There are three key
axes of
disagreement:

(1) Individual or group harm? Some people
argue that
harm can happen only to individuals, not groups. On this
view, a
harm or injustice inflicted on someone is not made more objectionable
because it has a racist motive, purpose, or cause. A racist
lynching is wrong because it is a lynching, and is not made more wrong
because it is racist. In addition, on this view there is no
reason to care about inequalities between groups; the only unjust
inequalities obtain among individuals. Others argue that
groups
can suffer harms, or, more specifically, that individuals can share in
a harm in virtue of their group membership. As an example,
they
point to group stigmatization.

(2) Classification or inequality? Some
people hold
that any belief, attitude, or practice that classifies people by race
(and to a lesser extent, gender) is per se morally
objectionable.
Such classifications are thought to be wrong because race is an
involuntary characteristic, or thought to be irrelevant to what really
matters about a person. On this view, all acceptable
attitudes
and practices must be colorblind. Others argue that some uses
of
racial classifications are benign or at least not of great consequence,
and that what is objectionable is the use of such classifications in
practices that create or sustain group inequality or oppression.

(3) Purpose or impact? Some people argue
that, as
long as no person specifically intends that their policies treat people
differently according to their race--that is, as long as they did not
consciously engage in racial classification in their action--then their
action is not racist. Others argue that policies that have an
unequal impact on different people because of their race are
objectionable, even if the unequal impact was not explicit or even
intended. The key point is that race played a causal role in
generating the inequality, not whether the causal role passed through
people's conscious deliberations. There are 3 basic
cases:
(a) Unconscious or covert racism. People
might treat
people differently according to unconsciously held racial stereotypes
or cognitive schemas that structure their perceptions and habits,
although they would disavow such representations if they were brought
to consciousness. Or, they may harbor unconscious feelings of
antipathy toward people on account of their perceived race, and treat
them accordingly. (b) Secondary racism,
or racism by
proxy. This occurs when a facially race-neutral basis for
discrimination is accepted at least in part because it tracks
race. For example, the Social Security system for its first
several decades did not cover domestic servants or agricultural
workers. This was the price white Southern politicians
exacted
from President Roosevelt for their support for the Social Security
Act. Most of the excluded workers were black or Hispanic, and
white Southerners did not want to pay for the retirement of their
nonwhite employees. Here the racist motive was explicit, but
it
is not hard to imagine covert racist motives operating in a similar
fashion. As long as the facially race-neutral classification
would have been rejected, had its negative impact been felt more
strongly by a socially advantaged race, the policy depending on the
classification is considered a form of racism by proxy. (c) Institutional
racism which is neither overt, covert, nor secondary, includes policies
that perpetuate the legacy of racial discrimination by means of
classifications that disproportionately impact disadvantaged racial
groups, but are not accepted because they do this. An example
would be the practice of colleges and universities giving preference in
admissions to the children of alumni ("legacies"). If these
schools practiced racial discrimination in the past, their alumni will
be disproportionately white, and so will their legacies.
Thus,
certain applicants will have an edge in admission because their parents
are white. This comes closest to a pure differential impact
standard, since it applies regardless of present (but not past) purpose
or motive. It is the most controversial standard of racism
for
this reason. Fundamentally, it claims that we ought to avoid
not
only intentional racial harm, but negligent
racial
harm. It asserts a duty of care to avoid reinforcing or
magnifying the harmful consequences of past racial discrimination.

For teaching purposes one might want to consider
whether
the word "racist" is too emotionally charged to be worth
using.
Many students resent the application of this term to cases lacking
hostile intent, even if they might accept that a policy could be
objectionable because its causal history and impact are inappropriately
tied to race.

Sophisticated,
sensitive, nuanced
discussion of moral problems concerning race. Especially good
at
resisting the tendency to think that any issue involving race is one
involving racism. Argues that to avoid expanding the meaning
of
the term to the point of reducing its normative force, we need to
distinguish racism (antipathy or contempt for people on account of
their race) from other phenomena involving race (e.g., racial anxiety,
racial ignorance). The other phenomena are also of moral
concern,
but not proper grounds for moral condemnation. Also contains
an
excellent discussion of what "race" is.

Individual vs. Group Harm

Denies that racist
motives add to the
wrongness of any action, because only individuals, not groups, are
subjects of moral harms and duties. Argues that it follows
from
this fact that there is no case to be made that wrongs against racial
groups deserve special rectification measures, such as affirmative
action.

Argues, against Levin,
that systematic,
institutionalized racial discrimination is especially wrong and
deserving of special rectification measures. A key point of
his
argument concerns the ways group identities magnify harms motivated by
group antipathy: the terror of a racist lynching is
experienced
not just by the particular victim, but by everyone else in the group
who is symbolically targeted by the lynching as considered fit for
subhuman treatment.

Contains 8 short pieces on
individual vs. group
treatment. Because this volume has just been published, the
papers are more accessible than those listed above. However,
none
of them in combination is as good in representing the issues than the
Levin-Brooks pair above, because they are all so brief.

Argues that "explicit
attention to
inequality betweenBlacks and Whites, as distinct from a
purely
color-blindconcern about inequality among
individuals, is
essential tothe attainment of social
justice." Important
speech by a noted African-American economist who is usually labelled
"conservative" for his criticism of the contemporary civil rights
racial agenda, including affirmative action, but whose views are in
fact not easy to classify.

Purpose vs. Impact

Garcia, Jorge. "The Heart of Racism," Journal
of Social
Philosophy 27 (1996): 5-46.

Discusses oppression as
a structural
phenomenon expressed in exploitation, violence, cultural imperialism,
marginalization, and subordination. Defends the relevance of
considering social groups rather than individuals as the focus of moral
and political concern.

Important legal defense
of the disparate
impact standard of racial discrimination, by the principal legal
inventor of the standard. The author, as head of EEOC,
successfully persuaded the Supreme Court to adopt the disparate impact
standard for Title VII employment discrimination claims in Griggs.
Blumrosen usefully develops the different standards of discrimination
by analogy with the different standards of liability in torts (malice,
negligence, strict). He also makes it clear that the prime
rationale for the differential impact standard is not that racial
proportional representation is a first principle of justice, but that
gratuitous impositions of burdens on those already disadvantaged on
account of race are unfair.

Race and Gender
Inequality in the United
States

Diagnosis of the causes of race and gender inequality
is
indispensible to evaluating affirmative action policies.
These
policies are proposed as a partial remedy for the effects of past and
present race- and gender- based disadvantage. However, such
disadvantages ought to be compensated or corrected for only if they are
unjust. This requires a demonstration that the actual
distribution of advantages in the U.S. does not follow principles of
just distribution. It may seem that this determination
depends
more on disagreements about principles of justice than on disagreements
about the causes of inequality. Thus, advocates of
affirmative
action are often thought to support "equality of outcome" while critics
support "equality of opportunity" or perhaps a libertarian theory that
permits private organizations to engage in race and gender
discrimination in a free market. However, the impact of
differences in underlying theories of justice on the debate over
affirmative action is less than often supposed. (1) There is
widespread consensus in the U.S. on the principle of equality of
opportunity; thus, most people evaluate the justice of current
distributions by this standard. (2) Even advocates of
equality of
outcome agree that inequalities due to the fully voluntary choices of
individuals among equivalent opportunity sets are
unobjectionable. (3) Even libertarians agree that
disadvantages
due to state-sponsored racism and sexism are unjust, and that
reparations are due to those whose property has been taken away in a
history of unjust (coercive) transfers.

In practice, then, most disputants agree on the
normative
implications for affirmative action of different causal accounts of
socioeconomic inequality. The case for affirmative action is
undermined if the fundamental causes of race and gender inequality can
be traced to (a) an innate, biological inferiority of the intended
beneficiaries of affirmative action in intelligence, motivation to work
hard, prudence and self-control, or other attributes needed for
success; (b) cultural pathologies of the intended beneficiaries that
interfere with their ability or willingness to take advantage of
opportunities; or (c) voluntary choices to pursue less rewarding
opportunities. The case for affirmative action is advanced if
the
fundamental causes of race and gender inequality can be traced to
racism and sexism as discussed above--that is, to (a) overt,
intentional discrimination by private parties or the state, on grounds
of race and gender; (b) unintentional discrimination by individuals due
to their unconscious acceptance of unjust stereotypes, evaluative
biases, or group-based antipathies; or (c) structural obstacles to the
advancement of nonwhites and white women whose causal antecedents can
be traced to (a) or (b). The literature on causes of group
inequalities is so vast that only a brief sampling of theories can be
offered here.

Racial Inequality

Biological Theories

Defense of
unreconstructed biological
racism. Argues, on the basis of black-white differences in
intelligence tests and crime rates, that racial inequalities in society
are caused by genetic differences in intelligence and that higher black
crime rates are due to genetically based black impulsiveness.
Expresses more certainty and stridency about its conclusions than the
more famous and circumspect Bell Curve. Includes a
fairly
comprehensive survey of the literature on race differences in
intelligence and criminality oriented toward genetic hypotheses.

Herrnstein, Richard and Murray, Charles. The Bell
Curve:
Intelligence and Class Structure in American Life. (New York
: Free
Press, 1994).

Most controversial for
its suggestion that
blacks are genetically determined to be less intelligent than
whites. Its central argument, however, is
class-based: that
differences in IQ are a primary cause of differences in socioeconomic
success.

While defending the
authors of the Bell
Curve from liberal attackers, argues that the "Flynn
effect"--the
demonstrated historical increase of many groups' I.Q.'s over a few
decades (too short a time for significant changes in their gene pool)
of orders of magnitude comparable to the black-white IQ gap--is
devastating to their thesis that blacks are genetically inferior in
intelligence to whites.

Cultural Pathology/Voluntary Choice Theories

Murray, Charles. Losing Ground
(New York: Basic
Books, 1985).

Blames the welfare state
for inculcating
dependency, bad behavior, and consequently poverty in blacks and the
underclass because of its perverse incentives and destruction of moral
standards.

D'Souza, Dinesh. The End of Racism: Principles for a
Multicultural Society. (New York: Free Press, 1996).

Blames the relative lack
of black
socioeconomic success on black cultural pathology, denying that white
racism is any longer a significant factor. In odd
contradiction
to this, acknowledges and defends "rational" (i.e., self-interested)
discrimination against blacks based on negative statistical
generalizations about them. Reconciles the contradiction by
denying that such discrimination constitutes racism. Calls
for
ending affirmative action and repealing antidiscrimination laws.

Considerably more
sophisticated than
D'Souza. Argues that the primary determinant of the
socioeconomic
success of ethnic groups worldwide is neither genes nor prejudice, but
their "cultural capital" (work habits, orientation to the market,
education, etc.).

A different take on
cultural pathology:
argues that inner city blacks, the vast majority of whom do not endorse
the "street ethics" of crime, drugs, and violence, are trapped into
"street" norms of honor and revenge as a condition of
survival.
This creates a vicious cycle, whereby hopelessness of marginalization
leads to the quest for "respect" via violent street norms, and
conformity to these norms in turn ensures deeper marginalization and
isolation from mainstream opportunities.

By far the most
important book arguing that
reponsibility for improving their situation today lies mainly with
blacks. Contains a lengthy and widely acclaimed history of
antiblack racism in the U.S. Argues that racism has ceased to
be
a major force in blacks' lives in recent years. Instead,
blacks
need to study harder, adapt to an entrepreneurial culture, and reject
crime and out-of-wedlock childbearing. Argues that reliance
on
the civil rights agenda has disserved blacks. The great
strength
of the book is its extensive historical evidence, some of which poses
sharp challenges to William J. Wilson's hypothesis that black
unemployment is due to a spatial mismatch of blacks and jobs.
If
jobs are lacking in the inner cities, then how have Asian immigrants
managed to succeed there? The great weakness of the book is
its
failure to consider the continuing importance of racial segregation to
the fate of African-Americans, and its consistent downplaying of
evidence of continuing racism in the U.S.

Surveys extensive
empirical evidence for
the phenomenon of "aversive racism", a form of covert racism whereby
self-described colorblind individuals manifest racially discriminatory
attitudes and behaviors of which they are unaware.

Documents complex
patterns of racial
discrimination among Chicago-area employers, based on interviews with
them. Useful for considering the interactions of race with
ethnicity, class, and other factors.

Identifies racial stereotypes
and racial stigma as
fundamental causes of racial inequality in the U.S., offering a model
of the dynamics of these psychological constructs in reproducing
inequality through the interactions of individuals. Loury's
model
is not a "discrimination" model, but rather a "stigmatization" model.
His point is that racial stigmatization plays a more important role
than direct discrimination in producing racial inequality, by depriving
blacks of opportunities for development. Inequalities
initially
produced through intentional discrimination can become entrenched,
perpetually reproducing themselves via voluntary market interactions of
individuals thereafter. A very important book.

Important empirical study of
racial and gender
discrimination in retail markets. Ayers is one of the leading
researchers who employs the audit testing method to detect market
discrimination. This involves sending out carefully matched black and
white, or male and female, prospective consumers to different retailers
and finding out if they are treated differently by the firms they
visit. Ayers found evidence of pervasive discrimination against blacks
and women in retail car negotiations, and discrimination against blacks
in bail bonding and access to kidney transplants. This constitutes very
strong empirical evidence against Gary Becker's famous hypothesis that
markets drive out discrimination. Glenn Loury, in The Anatomy
of
Racial Inequality, cited above, offers theoretical models of
market
interactions that explain Ayers' empirical results.

Argues that the lower
educational
performance of black relative to white students is due to racial
stigma. Under the sway of racial stereotypes, teachers fail to notice
and encourage black academic performance. Internalization of
racial stereotypes of black intellectual inferiority threatens black
students with the prospect that their failures will be interpreted as
reflecting the failures of their race. Disidentification with
school is a strategy for coping with the stereotype vulnerability that
threatens black students' self-esteem.

Excellent brief summary
of the theory and
evidence of how discrimination works through unconscious cognitive
biases--stereotypes, attributions, ingroup preference, etc.--and how
workplaces can be changed to block the operation of these biases.

*"True Colors" ABC Primetime Live Segment,
Sept. 26, 1991.

By far the best, most
vivid demonstration
available today of the persistance of racial discrimination in the
U.S. Perfect for instructional purposes at 20 minutes in
length. Available in many university video
libraries. ABC
sent two carefully matched "testers", one white, one black, to St.
Louis to see how they faired in numerous encounters: shopping
for
shoes, renting a video, searching for an apartment, seeking employment,
buying a car, hailing a taxi, and so forth. They captured
egregious cases of worse treatment of the black tester in every
setting. The cumulative impact of these cases over a short
period
of time is stunning.

Institutional (Structural) Theories

Important
general theory of the causes of group inequality, by one of the most
distinguished, creative, and prolific sociologists of the 20th century.
Tilly argues that the basic causes of systematic group
inequality are the same, regardless of the type of group at
issue--race, gender, caste, ethnicity, etc. A must read for
anyone interested in social stratification.

Most valuable for its
extensive statistical
documentation of black-white racial inequality in the U.S.
Readers not already persuaded by theories of institutional racism tend
to doubt the author's causal claims that black disadvantages can be
attributed to white racism, in part because of his neglect of
alternative hypotheses.

*Massey, Douglas and Denton, Nancy. American
Apartheid :
Segregation and the Making of the Underclass (Cambridge,
Mass.:
Harvard University Press, 1993).

Focuses on pervasive
residential
segregation as a linchpin of continuing black socioeconomic
disadvantage. Extremely useful source of data on housing
segregation, including detailed and rigorously documented evidence of
continuing systematic and extensive housing discrimination practiced by
landlords and real estate agents. Discusses the ways housing
segregation underwrites other explanations of black disadvantage, such
as difficulties in accumulating wealth, poor access to public services,
especially to good schools, cultural/linguistic isolation, difficulties
in forging political coalitions with other groups, the spatial mismatch
between where blacks live and where job growth is occurring,
etc.
Chapter 4 contains a particularly illuminating discussion, suitable for
undergraduate instruction, of the causes and consequences of
institutionalized housing discrimination, including an important
comparison of white and black Hispanics.

First-rate account of the
fundamental causes of social stratification by race, class, and gender
in the U.S. Extensively documented discussion of
the latest studies, integrating sociology, social psychology, political
science, and economics. If
you need a single source covering it all, this is it.
Particularly good on blacks and Latinos, especially on the
effects of mass incarceration on blacks.

Roithmayr, Daria, "Locked In Inequality:
The Persistence of Discrimination," 9 Michigan Journal of Race and Law
31 (2003)Roithmayr,
Daria, "Locked in Segregation" . Virginia Journal of Social
Policy and the Law, Vol. 12, No. 957 Available at SSRN: http://ssrn.com/abstract=627724

Important
papers explaining the persistence of racial inequality even in the
absence of continuing racial discrimination by means of a "market
lock-in theory," according to which early white advantages due to
discrimination get "locked in" via network effects. The
second paper uses the lock-in theory to explain the persistence of
residential racial segregation in the US.

Wilson, William Julius. When Work Disappers : The
World of the
New Urban Poor (New York: Vintage Books, 1997).

Argues that black
socioeconomic
disadvantage can be attributed to the disappearance of jobs in the
inner cities, where blacks disproportionately live. An
important
work, especially for the way it addresses the argument that black
disadvantages can be attributed to black cultural pathology.
Wilson acknowledges cultural pathology, but argues that its cause is
the inability of black men to find work.

Documents the large
disparities between
black and white wealth. Argues that the causal impact of
wealth
differences is often overlooked in analyses of racial disadvantage that
focus on much smaller racial differences in income. The wealth gap is
not explained by lower black savings rates, but by the fact that whites
inherit more wealth, have greater opportunities to enjoy housing
appreciation, and own more businesses.

Kousser, J. Morgan. Colorblind injustice : minority
voting
rights and the undoing of the Second Reconstruction. (Chapel
Hill,
N.C. : The University of North Carolina Press,1999).

Comprehensive account of
disenfranchisement
of African-Americans and Latinos in the U.S. The first
chapter,
covering the decline of African-American enfranchisement from the end
of Reconstruction until the Voting Rights Act of 1965, is a tour de
force. That chapter gives an outstanding account of the
innumerable strategies used by Southern states to disenfranchise blacks
without using overt racial classification. The focus of the
book
is on post- Voting Rights Act litigation, emphasizing the ways in which
African-American and Latino voters continue to have their voting power
diluted by various state and political party actions, and how the
Supreme Court has failed to protect these groups against effective
political marginalization. Of special interest for its focus
on
Mexican-American as well as black disenfranchisement.

The best comprehensive
study of racial
discrimination in law enforcement, on every level:
differential
protection of racial groups from crime, differential prosecution,
racial profiling, race-based jury selection, racism in the application
of the death penalty. A mark of intellectual integrity in the
book is that the author toes no party lines: while finding
that
the evidence supports the claim that there is racism in the application
of the death penalty, Kennedy is more skeptical of arguments that the
war on drugs--in particular, the sentencing differential between those
convicted of possessing crack and powder cocaine--is racist.

Gender Inequality

Probably the single best
brief account of
the systematic socioeconomic disadvantages women face due the
institution of marriage. Outstanding undergraduate
teaching
source, highly accessible and clearly written. Focuses on the
interactions of norms of marriage and a sexist division of labor within
the family, the socialization of girls to expect marriage and large
childrearing responsibilities, the relatively weak bargaining power of
women within marriage, and women's limited options in the labor market.

Classic text that made
the case that sexual
harassment in the workplace constitutes a violation of
antidiscrimination law. Revolutionized the law of
discrimination. Analyzes sexual harassment as a means by
which
the subordination of women in the workplace is sustained.
Even
more than 20 years later, MacKinnon's original analysis of sexual
harassment remains important.

Documents the continuing
systematic
disadvantages women face in U.S. society across a wide range of legal,
social, and public policy settings. Explains why people have
difficulty recognizing women's disadvantages.

The most comprehensive
and empirically
rigorous account to date of the relatively slow advancement of women in
the professions. Argues, on the basis of extensive data from
psychology, sociology, economics, and biology, that people employ
hypotheses about gender differences, embodied in "gender schemas" that
create small sex differences in characteristics, behaviors, perceptions
and evaluations of men and women. These small differences
accumulate, resulting in systematic underrating of women relative to
men in professional settings. An excellent reference work,
with
numerous highly useful citations.

Identifies gender
segregation of work (the
fact that most people work in jobs overwhelmingly staffed by people of
the same sex) as a major cause of gender inequality in
resources.
Attributes this phenomenon to several causes, including employer
stereotypes and preferences, actions of male employees to deter women
from entering or persisting in male-dominated jobs, and structural
features of the internal job market (if only some entry-level jobs lead
to promotion opportunities, then preferential selection of men to those
job will entail that they dominate the upper-level jobs as
well).
The big surprise of Reskin's survey of empirical research is that
economic "human capital" explanations of gender segregation are
empirically disconfirmed: motherhood actually increases
the
probability that a woman will be in or seek a nontraditional
(male-dominated) job.

Argues that biological
differences between
the sexes make male dominance inevitable. Rewritten update
with
replies to critics of Goldberg's 1973 Inevitability of
Patriarchy.
Claims that sex differences in testosterone make men more aggressive,
competitive, and ambitious than women, and hence motivates men to excel
in any field their culture deems prestigious.

Highly accessible
critique by a biologist
of biological theories (genetic, hormonal, evolutionary) that purport
to explain male dominance. Ch. 5 on hormones and aggession
makes
an effective pairing with Goldberg.

Arguments for
Affirmative Action Policies

Definition: affirmative
action policies
include any policies that (a) attempt to actively dismantle
institutionalized or informal cultural norms and systems of ascriptive
group-based disadvantage, and the inequalities historically resulting
from them, and/or that (b) attempt to promote an ideal of inclusive
community, as in ideals of democracy, integration, and pluralism
(multiculturalism), (c) by means that classify people according to
their ascriptive identities (race, gender, ethnicity, sexual
orientation, etc.) and select people for participation in institutions
using these classifications as criteria.

Arguments for affirmative action policies can be
divided
into 4 categories. (1) Arguments on grounds of justice defend
affirmative action as a compensation or corrective for past and
continuing racism/sexism. (2) Arguments on grounds of democracy view
group-conscious representational devices as necessary under certain
conditions for realizing a democratic society. (3) Arguments on grounds
of social utility claim that affirmative action policies promote
desirable goals such as better mentoring of members of disadvantaged
groups or delivering professional services to the
disadvantaged.
(4) Arguments on grounds of free speech and education defend
affirmative action policies for the ways they create the diverse set of
participants in discourse, research, and learning that is claimed
necessary to promote the internal mission of educational
institutions. Discussion of this last category of arguments
is
deferred to the section on "Affirmative Action in Education."

Arguments from Justice

Arguments from justice are of 3 fundamental types: compensatory
(backward-looking), discrimination-blocking (present-oriented), and
integrative (forward-looking). . Compensatory affirmative action aims
to compensate people for past
discrimination and its effects.
A main effect of past discrimination is current competitive
disadvantage; affirmative action gives victims a competitive advantage
to compensate for this injury. Discrimination-blocking
affirmative action aims to block current
discriminatory mechanisms by imposing a countervailing force in the
opposite direction. It doesn't remove the factors--prejudice,
stereotypes, stigma, intergroup anxiety--that cause discrimination; it
just tries to block their discriminatory effects. Integrative
affirmative action aims to dismantle the current causes of race-based
disadvantage--segregation, stigmatization, discrimination--by promoting
racial integration. It thus aims for a future in which
these
causes no longer operate.

That affirmative action is
just compensation or reparation for historical injustice

Very nice
paper defending compensatory affirmative action from the standard
charges against it: that it is overinclusive, in compensating
members of disadvantaged racial groups who have not personally suffered
discrimination or its effects; underinclusive, in failing to compensate
whites who have suffered discrimination; and fails to tailor the amount
of benefit to the degree of harm personally suffered. Nickel
argues that these facts do not force compensatory affirmative action to
a collectivist stance, according to which racial groups as a whole are
the relevant units of moral entitlement. Rather, compensatory
affirmative action can retain its individualist rationale, and justify
group-based awards on grounds of administrative necessity:
the costs of case-by-case adjudication would be too high.
Where the wrongdoing against a particular class has been
pervasive enough, the harm so great that the chance is negligible that
compensation would overshoot the aggregate damages, and individualized
compensation is excessively costly or impossible, then generalized
compensation to the group comes closer to the ideal of compensatory
justice than a refusal to compensate at all. This short,
snappy paper is helpfully reprinted in Cahn, Steven, ed. The
Affirmative Action Debate. 2nd ed. New York: Routledge, 2002.

Updates the redress
argument, exploring the
history of racial discrimination from the New Deal through the civil
rights era. Makes interesting parallels with the caste
systems of
South Africa and India, and affirmative action systems in these
countries. Considers the political motives behind the
movement to
prohibit affirmative action in California. Also contains an
intriguing discussion of Brandeis University's decision to practice
affirmative action for men upon its discovery that exclusive reliance
on criteria of academic merit would lead to a student body that was 70%
female.

That affirmative
action helps block current mechanisms of
discrimination

Skrentny,
John. The Ironies of
Affirmative Action. (Chicago: University of Chicago Press,
1996).

Not an
argument for affirmative action, but an indispensable historical
account of how affirmative action in employment came about.
The discrimination-blocking model of affirmative action did
not arise from any fundamental theories of justice, but from the
experience of administrative agencies charged with enforcing
antidiscrimination laws. They found that after the passage of
antidiscrimination laws, nothing
changed. Employers continued to discriminate,
and members of groups suffering from discrimination made virtually no
inroads into occupations and businesses that had been excluding
them. The complaint remedy built into Title VII, based on an
individualized compensation model, proved ineffective in combating this
discrimination. Individual victims of discrimination had a
hard time identifying themselves and proving
discrimination. When they managed to do so and
filed suit, they still saw little relief. Huge, intractable
caseloads overwhelmed the ability of courts and administrative agencies
such as the EEOC to handle them in a timely way. Case-by-case
litigation imposed huge costs on plaintiffs and employers alike.
To get practical, measurable, results, federal agencies
started to pressure firms to adopt race-based hiring goals.

Useful
book documenting how affirmative action operates in the workplace,
confirming Skrentny's account. In general, affirmative action
hiring goals are used as a counterforce against current discriminatory
tendencies in the workplace, rather than as a means to require less
qualified women and minorities to be hired over more qualified white
men. Vigorously contests the charge that affirmative action
in employment operates in the latter way, with supporting evidence.

Further
confirmation of Skrentny's account. Argues that passage of
discrimination laws is ineffective in stopping discrimination in the
absence of concerted government pressure on firms to stop
discriminating and integrate their jobs.

For those who are
skeptical about
reparations for harms incurred a generation or more ago, Ezorsky argues
that affirmative action can be justified on the ground that the harms
of discrimination are current, and require compensation.

Widely reprinted defense
of affirmative
action as a necessary correction for current discrimination.
Documentation of continuing institutional racism is central to the
article. Has the advantage over Ezorsky of brevity; makes an
excellent companion piece to Pojman's anti-affirmative action paper
(cited below), for those who wish to present students with a pair of
highly representative articles on affirmative action, pro- and
con. Its disadvantage is that it is somewhat dated; for this
reason the Ezorsky book, with its updated argument and evidence, may
well be preferred as a teaching source. Relevant portions of
Ezorsky can be excerpted for those who don't want to assign the entire
book.

Lively, highly accessible
defense of affirmative
action, more by replying to criticisms than by direct
argument.
Argues that the charge of reverse discrimination ignores history, and
that objections on grounds of merit ignore the weak justification of
conventional criteria of merit such as the SAT as well as current
obstacles to equality of opportunity.

Provides
evidence that tokenism in the workplace hurts women and minorities by
exposing them to discrimination. More fully integrating jobs
so women and minorities don't stand out can prevent discrimination
against them. Affirmative action is a tool for integrating
jobs.

Defends affirmative action as a remedy for
current unconscious discrimination. Based on the latest
theories of implicit bias (cognitive discrimination). The
authors argue that viewing affirmative action as a correction of
current bias avoids the difficulties of backward-looking and
future-benefit rationales for race-conscious selection.

This
article, by the author of
this website,
defends racial integration as a central goal of race-based affirmative
action. Racial integration of mainstream institutions is necessary both
to dismantle the current barriers to opportunity suffered by
disadvantaged racial groups, and to create a democratic civil society.
Integration, conceived as a forward-looking remedy for de facto racial
segregation and discrimination, makes better sense of the actual
practice of affirmative action than backward-looking compensatory
rationales, which offer restitution for past discrimination, and
diversity rationales, which claim to promote nonremedial educational
goals. Integrative rationales for affirmative action in higher
education could also easily pass equal protection analysis, if only the
point of strict scrutiny of racial classifications were understood.
Unfortunately, the development of strict scrutiny as an analytical tool
has been hampered by the Court's
confusion over the kinds of
constitutional harm threatened by state uses of racial classification.
This Article sorts out these alleged harms and shows how strict
scrutiny should deal with them. It shows how the narrow tailoring tests
constitute powerful tools for putting many allegations of
constitutional harm from race-based affirmative action to rest, and for
putting the rest into perspective. It also argues that there is no
constitutional or moral basis for prohibiting state uses of racial
means to remedy private sector discrimination. Integrative affirmative
action programs in educational contexts, which aim to remedy private
sector discrimination, can therefore meet the requirements of strict
scrutiny, properly interpreted.

Sabbagh, Daniel. Equality and Transparency: A
Strategic Perspective on Affirmative Action in American Law
(New York: Palgrave MacMillan, 2007).

Important
newbook elaborating on Ronald Dworkin's
defense of affirmative action. Dworkin argues that the
fundamantal purpose of affirmative action is to break the correlation
between race and class by bringing more blacks and Latinos into the
middle class. This will, by eliminating the basis for forming
them, break down the stigmatizing stereotypes of disadvantaged racial
groups as "underclass"--stereotypes that themselves constitute a grave
barrier to equality of opportunity. Sabbagh offers a powerful
empirical defense of Dworkin's view, grounded in evidence in social
psychology of the ways stereotypes are formed, and in economic and
sociological evidence on the devastating impacts of stereotyping and
consequent discrimination on the lives of blacks. He also
provides powerful critiques of compensatory and diversity-based
affirmative action, and a deep analysis of the difficulties affirmative
action programs face in publicizing their operations and rationales in
a non-self-undermining way. Superbly argued,
researched and documented. Highly
recommended.

Argues that race-based
affirmative action policies
are necessary in college admissions because a central mission of the
university is to promote a democratic culture. This requires
building the cultural capital of all citizens, so that they have the
communicative and imaginative skills necessary for creating a
universally inclusive, democratic discourse. Colleges and
universities "aspire to cultivate the remarkable and difficult capacity
to regard oneself from the perspective of the other, which is the
foundation of the critical interaction necessary for active and
effective citizenship", p. 23. Without a diverse student body
(to
which end affirmative action is necessary), educational institutions
will be able to inculcate only limited capacities for critical
interaction across group divisions. Post stresses that this
argument does not depend on the thought that identities correspond to
cultures, or that individuals have fixed identities. Part of
the
point of a democratic culture is to free individuals and citizens
acting collectively to engage in self-definition and
self-determination, without being beholden to definitions based on
birth or ancestry.

Important paper by a former
University of Texas
law professor who was recruited by his university to help defend UT's
affirmative action policies in the famous Hopwood
case (they
lost). Argues that the democratic state has a compelling interest in
training a racially integrated elite. Race-based affirmative action is
the only way to enable schools to simultaneously pursue their
compelling interests in meritocracy and in integrating all groups into
the nation's elite. Contains important
data and arguments
explaining
why race-neutral attempts to secure integration either fatally
compromise academic standards or fail to generate significant black and
Hispanic enrollment in selective schools.

Novel
democratic defense of
affirmative action in
employment, arguing that places of employment are major sites of civil
society, in which citizens interact and share their views. The
democratic interest in promoting an integrated civil society--ensuring
that citizens from different socially salient groups share their views
with one another--supports affirmative action in the workplace.

The principle
and ideal developed in Brown v. Board of Education
and
its successor cases lie at the heart of the rationale for affirmative
action
in higher education. The principle of the school
desegregation cases
is that racial segregation is an injustice that demands
remediation.
The ideal of the school desegregation cases is that racial integration
is
a positive good, without which "the dream of one Nation,
indivisible"
cannot be realized. The good of integration is directly
connected to
realizing democracy through the promotion of a racially integrated
elite, which, in virtue of its racial diversity, is more accountable to
and more knowledgable of the problems of citizens from all walks of
life than a homogeneous and insular elite. Both the principle and the
ideal make racial integration
a compelling interest. The Supreme Court recognized these
claims in
Grutter v. Bollinger. However, it failed
to take full advantage
of them. It thereby failed to answer crucial questions that
must be
answered by policies subject to strict scrutiny. I display
the links
tying Grutter to Brown, discuss
the vulnerabilities of Grutter
in the absence of an explicit grounding in Brown,
and demonstrate
how the affirmative action policy upheld in Grutter,
when explicitly
grounded in Brown, survives strict scrutiny.

A
comprehensive discussion of the inegalitarian and undemocratic effects
of de facto racial segregation, in the context of a general theory of
group inequality and a review of empirical evidence, and a
comprehensive defense of integration policies including affirmative
action, with a review of the empirical evidence on its effects, not
only on its targeted beneficiaries, but on the democratic character of
civil society. A Précis of The Imperative of Integration may be found in Poverty and Race 20.4 (2011), published by the Poverty and Race Research Action Council.

Weisskopf,
Thomas. Affirmative
Action in the United States and India: A Comparative Perspective.
(Routledge, 2004).

"The
most important objective of . . . [affirmative action policies] is to
bring about greater ethnic integration of society's elite, on the
reasonable premise that society functions more efficiently, more
equitably, more democratically, and more harmoniously if its
professional, managerial, academic, and political elite is ethnically
well integrated." (p. 244).

Arguments from Social Utility

*Dworkin, Ronald. "Affirmative Action: Does it Work?"
"Affirmative
Action: Is it Fair?" in Sovereign Virtue: The Theory and
Practice
of Equality (Cambridge, Mass: Harvard University Press,
2002).

Important defenses of
affirmative action by one
of the leading legal scholars in the U.S., and one of the leading
advocates of affirmative action. Vigorously denies that affirmative
action is unfair to whites, using a battery of arguments. Dworkin
distinguishes himself by offering a predominantly forward-looking,
rather than compensatory, rationale for affirmative action.

Defense of affirmative
action with replies
to a major critic (cited below). Besides appealing to
considerations of compensatory justice, offers a battery of arguments
for its good consequences: (1) role models; (2) diversity in education;
(3) increases in the pool of applicants and hence competition; (4)
replacement of diminishing marginal utility for richer whites with more
utility for poorer blacks; and (5) unskewing biased and incomplete
tests of merit.

That affirmative action promotes
diversity, which leads to further good consequences

"Diversity" arguments for
affirmative action are a species of argument from social utility.
The general idea is that group attributes can contribute to
positive outcomes over and above the attributes of individuals.
The diverse whole is greater than the sum of its individual
parts. Diverse groups are more effective at solving problems
than relatively homogeneous groups, even if the average
individually-measured merit of the homogeneous group is higher than the
average individually-based merit of the diverse group. There
are many dimensions of diversity that have this property; the trick is
to show how these dimensions are linked to race, ethnic, gender, or
class diversity--the typical types of diversity sought by affirmative
action programs. This section considers diversity outside
education; a later
section
considers diversity in the context of education.

Argues that
diversity in education and employment has myriad good consequences,
which are recognized in the American system of law.

Hong,
L.,
and S. Page. 2004. "Groups of diverse problem solvers can outperform
groups of high-ability problem solvers." Proceedings of the National
Academies of Science101:16385-89.
Page, Scott, The
Difference: How the Power of Diversity Creates Better Groups, Firms,
Schools, and Societies
(new ed.) (Princeton: Princeton University Press, 2008)

The paper
demonstrates the "diversity trumps ability theorem," a formal model
showing how groups of diverse problem-solvers outperform groups of the
best problem solvers. Page's forthcoming book is a highly
accessible account of formal models and empirical results demonstrating
how group diversity helps organizations solve problems and make better
predictions. The connection of Page's defense of diversity is
indirect, and depends upon showing links between racial, ethnic, gender
or class diversity of group members is linked to various forms of
desirable cognitive diversity. Page considers this issue,
offering a cautious and qualified diversity defense of affirmative
action, noting that identity diversities also bring conflicts to groups.

Sklansky, David Alan, "Not Your
Father's Police Department: Making Sense of the New Demographics of Law
Enforcement" . Journal of Criminal Law and Criminology, Vol. 96, Spring
2006 Available at SSRN: http://ssrn.com/abstract=885446.

Argues
that affirmative action in the hiring of police broke down a
pathological, insular police subculture that has made police forces
more open to positive reforms and better able to establish good
relationships with the community.

That affirmative action increases professional services to
disadvantaged populations

(From the abstract:)
Using two large
physician surveys, finds that minority and women physicians are much
more likely to serve minority, poor, and Medicaid populations. Weaker,
but significant association exists between physician and patient
socioeconomic background. Service patterns are
sustained
over time and are generally consistent with physician career
preferences. Argues that ending affirmative action in medicine may
imperil access to care. Results do not support affirmative action based
on economic disadvantage instead of race, ethnicity, and sex.

(From the abstract:)
Analyzed data on
physicians' practice locations and the racial and ethnic makeup and
socioeconomic status of communities in California in 1990. Also
surveyed 718 primary care physicians from 51 California communities in
1993 to examine the relation between the physicians' race or ethnic
group and the characteristics of the patients they served. Found that
communities with high proportions of black and
Hispanic residents were four
times as likely as
others to have a shortage of physicians, regardless of community
income. Black physicians practiced in areas where the percentage of
black residents was nearly five times as high, on average, as in areas
where other physicians practiced. Hispanic physicians practiced in
areas where the percentage of Hispanic residents was twice as high as
in areas where other physicians practiced. After controlling for the
racial and ethnic makeup of the community, black physicians cared for
significantly more black patients (absolute difference, 25 percentage
points; P < 0.001) and Hispanic physicians for significantly
more
Hispanic patients (absolute difference,
21
percentage points; P < 0.001) than did other physicians. Black
physicians cared for more patients covered by Medicaid (P = 0.001) and
Hispanic physicians for more uninsured patients (P = 0.03) than did
other physicians. Concludes that Black and Hispanic physicians have a
unique and important role in caring for poor, black, and Hispanic
patients in California. Dismantling affirmative-action programs as is
currently proposed, may
threaten health care
for both poor people and members of minority groups.

That affirmative action corrects for biased criteria of
merit and
enables the identification of the talented among the disadvantaged,
thereby adding them to the labor pool

Argues that women are
often perceived to be
less qualified than they are, so that affirmative action corrects for a
sexist perceptual bias in evaluations of merit.

Davis, Michael. "Race as Merit," Mind 92
(1983): 347-367.

Argues that under
certain circumstances,
being black can count as a merit or qualification for office.
Affirmative action thus does not necessarily contradict the principle
of merit or constitute reverse discrimination.

Other arguments of interest

Argues that the U.S.
military's
implementation of affirmative action policies on behalf of blacks is
highly successful: it has resulted in a higher proportion of blacks in
management positions than in any other sector of U.S.
society.
Key points of its program are rigorous enforcement of integration and
antidiscrimination principles and inclusion of race-relations skills as
a dimension of merit in evaluating performance of officers.
Moskos went on to write a book with John Butler, All That We
Can Be
: Black Leadership and Racial Integration the Army Way (New
York:
Basic Books, 1997), which stressed as elements contributing to the
success of military integration its uncompromising and uniform
application of standards of merit for promotion, combined with
intensive investment in skills and training of disadvantaged blacks so
they can meet these standards.

Useful survey of the
empirical research on
how affirmative action works in employment settings, its impact and
outcomes. Many empirical studies are covered in this brief
work,
which undermine some prominent criticisms of affirmative action--e.g.,
that it increases workplace inefficiency by hiring less qualified
people, and that it puts psychological burdens on its recipients by
making them feel undeserving.

Comprehensive Defenses of Affirmative Action

Outstanding source for
undergraduate
teaching. Discusses institutional racism, with examples and
case
studies. Focuses on race-conscious remedies for institutional
racism in employment rather than educational contexts.
Responds
to a full battery of criticisms of affirmative action.
Especially
effective in response to tort model objections to compensatory
affirmative action (cited below). Argues that the systematic but
diffuse character of institutionalized racism makes the tort model of
compensation inapplicable. For example, recruitment by
advertising to current (white) employees may effectively exclude
nonwhites in general even though one cannot identify specific
individuals harmed by the policy, to whom individualized compensation
could be offered. Argues that individual whites who bear the burdens of
affirmative action policies can and ought to be compensated without
dismantling affirmative action itself. Contains excerpts of
important Supreme Court cases relating to affirmative action policies.

Unusual argument for
affirmative
action. Argues that, while there is extensive evidence of sex
discrimination in employment and that women know this, they are
reluctant to perceive discrimination in their own case. Thus,
remedies for discrimination that rely on women to bringing forth
complaints of discrimination on their own behalf will fail to rectify
discriminatory conditions. Argues that affirmative action
should
be billed as a means to eliminate difficult to perceive biases against
equally or more qualified women, rather than as special helping efforts
for less qualified women. Most interesting for its theory and
documentation of evidence for the claim that women are motivated to not
perceive discrimination against themselves.

Argues that affirmative
action is justified
both morally and Constitutionally as a means to ensure
equality
of opportunity bycompensating for the present effects of past
discrimination. Groups thatsuffer no present effects of
discrimination are not entitled to affirmativeaction, nor may the
remedy impose costs on others beyond taking away whatever competitive
advantages they enjoy in virtue of the unjust deprivations of
others' opportunities. Includes a comprehensiveassessment of
various arguments for and against affirmative action and the rival
conceptions of equality underlying them.

Gutmann, Amy. "Responding to Racial Injustice," in Gutmann and
Appiah, Color Conscious: the Political Morality of Race.
(Princeton: Princeton University Press, 1996).

Argues that color
blindness is not a
fundamental moral principle. To the extent that people are
deprived of full liberties and equal opportunities because of their
racial status, they are entitled to remedies to correct this
problem. Colorblind remedies such as class-based affirmative
action, while they may be justified in themselves, are not an effective
substitute for color conscious remedies, either in principle
or
in practice. Defends diversity rationales for affirmative
action
in higher education, and denies that the principle of merit creates
entitlements on the part of the best qualified.
Merit need
be recognized only to the extent that all candidates for a position are
minimally qualified.

Arguments Against
Affirmative Action Policies

Arguments against affirmative action policies can be
divided into 2 categories. (1) First, arguments that oppose
affirmative action policies on moral principle (considerations of
justice). (2) Second, arguments that oppose these policies on
grounds of their bad consequences: that they are self-defeating,
harmful, or inefficient.

Arguments on Moral Principle

That affirmative action is "reverse discrimination"

Argues that affirmative
action violates the
fundamental principle of equal protection of the laws
("colorblindness"). Turning the tables on previously favored
groups is as unjust as the original discrimination.

That affirmative action violates the principle of merit

Argues that the meaning
of offices requires
hiring by merit. The most meritorious candidate has a right
to
the position. Race is a bona fide qualification for a job
only in
special circumstances. In practice, race-based affirmative
action
will open opportunities to minorities and women at the expense of the
least advantaged white men.

That affirmative action violates principles of compensatory
justice

These arguments adopt a tort model of compensation
for
unjust discrimination and object to affirmative action policies for
failure to secure compensation in line with this model: for
(a)
benefiting individuals who have not suffered discrimination; (b)
burdening individuals who have not engaged in discrimination; (c)
failing to adjust the size and kind of compensation to the specific
discriminatory harms each individual suffered.

Classic argument against
the use of race as
a proxy in affirmative action contexts. The use of race as a
proxy for morally relevant variables (e.g. being a victim of
dicrimination), Posner argues, is unjust for being both under- and
over-inclusive. Moreover, any argument that justifies the use
of
race as a proxy on efficiency grounds (saving the costs of
individualized determination of merits) for the benefit of minority
groups would equally well have to accept the use of race as a proxy in
ways that disadvantage those very groups--e.g., an employers' use of
minority group membership as a proxy for dispositions to
criminality. Posner argues for a per se legal rule forbidding
racial preferences for any reason. For teaching purposes,
this
article is very usefully paired with Judge Posner's opinion, Wittmer
v. Peters, annotated below, which upholds a racial
preference for
black prison guards in a context where race appears to be relevant to
the prison's ability to advance its mission. The two
positions
are not strictly contradictory (in the first, Posner is arguing from
his own premises, in the second, he acts as a judge bound by Supreme
Court rulings that permit racial discrimination for compelling
reasons), but they do reflect a substantive change in moral
temperament-- toward a more empirical, pragmatically oriented form ofoffends
virtually every value held dear in free speech jurisprudence
reasoning in the latter case.

Arguments from Social Utility

That affirmative action harms its intended beneficiaries.

Steele, Shelby. The Content of our
Character: A New
Vision of Race in America. (New York: HarperPerennial, 1991).

Argues that affirmative
action stigmatizes
its intended beneficiaries by implying that they are less competent and
can't compete as equals with others.

Argues that the main
effect of abolishing
affirmative action is to send black students from highly competitive
schools where they are likely to fail to less selective schools where
they are more likely to succeed, because their qualifications are more
closely matched to those of their peers.

Argues that affirmative
action programs
cause white resentment toward blacks. Also argues that
relatively
higher dropout rates of minorities from colleges is due to affirmative
action policies that place students at more competitive colleges than
they can handle.

That affirmative action is socially divisive and leads to a
Balkanized society.

Among its many arguments
that affirmative
action programs have bad consequences, argues that the logic of
compensatory affirmative action can place no limit on the number of
groups claiming special privileges on account of a history of
discrimination. This produces incentives for individuals to
identify more with aggrieved groups than with the nation as a whole,
leading to fragmentation and increasingly divisive competition among
different groups for their share of preferences.

That affirmative action is economically inefficient.

Argues that, besides insulting
middle-class blacks
for implying that they are not competent enough to compete with whites
on a level playing field, affirmative action reduces blacks' incentives
to achieve and accumulate human capital by systematically lowering the
standards of admission and employment expected of them. This
article is far from a litany of conservative criticisms of affirmative
action, however. For Loury also argues that "notwithstanding
the
establishment of a legal regime of equal opportunity, historically
engendered economic differences between racial groups could well
persist into the indefinite future. . . the pronounced racial
disparities to be observed in American cities are particularly
problematic, since they are, at least in part, the product of an unjust
history. . . . Thus I would argue. . . that the government
should
undertake policies to mitigate the economic marginality of those
languishing in the ghettos of America. This is not a reparations
argument. When the developmental prospects of an individual
depend on the circumstances of those with whom he is socially
affiliated, even a minimal commitment to equality of opportunity
requires such a policy. In our divided society, and given our tragic
past, this implies that public efforts intended to counter the effects
of historical disadvantage among blacks are not only consistent with,
but indeed are required by, widely embraced democratic ideals." One of
the most nuanced and interesting papers available on affirmative
action; not easy to classify as either "liberal" or "conservative."

That affirmative action is an ineffecient remedy for
unconscious discrimination

While
conceding that unconscious racial bias is pervasive, argues that
affirmative action is an inefficient remedy for it, because employers
don't know how to correct for their unconscious biases, affirmative
action won't help, and employees are the least cost avoiders of
discrimination. Hence, the costs of unconscious bias should
be left where they fall.

That the diversity defense of affirmative action cannot
bear the weight put on it

Three
blistering critiques of the diversity defense of affirmative action.
Chen argues that the diversity defense could only make sense
in conjunction with First Amendment interests in a diversity of
viewpoints, but that it "offends virtually every value held dear in
free speech jurisprudence" by equating
viewpoints with looks. Volokh argues that the same diversity
rationale for race would also apply to religion; since we reject
discrimination on the basis of religion for diversity reasons, we
should similarly reject discrimination on the basis of race for
diversity reasons. In addition, the use of race as
a proxy for attitudes is generally unjustified under the 14th
Amendment, since it depends on racial stereotypes. Graglia
condemns diversity-based defenses of affirmative action in higher
education for being dishonest and lacking in empirical support, as well
as unconstitutional race discrimination.

That diversity is better left to private voluntary efforts than
government management

Comprehensive and nuanced
account of the history
and current conceptualization and practice of diversity in the U.S.
Argues that, for the most part, the worthwhile forms of diversity can
and will be achieved through private sector voluntary efforts.
Criticizes most but not all state-sponsored diversity efforts,
especially by courts, as muddled, meddling failures.

Comprehensive Critiques of Affirmative Action

Classic early statement
against affirmative
action. Argues that, with the success of the civil rights
movement in changing racial attitudes and legally abolishing
discrimination, African-Americans can be expected to follow the pattern
of assimmilation and upward mobility of white immigrant groups, without
needing special preferences. Adoption of affirmative action
preferences therefore represents a gratuitous assault on the colorblind
principle, threatening a return to the Balkanizing identity politics of
the past. Glazer has since changed his assessment of
affirmative
action, in light of the failure of his optimistic prediction to be
realized after 20 years. In We are All
Multiculturalists Now (Cambridge,
Mass.: Harvard University Press, 1997), Glazer reluctantly concedes the
necessity for affirmative action because persistent segregation and
discrimination continue to prevent blacks from realizing equal
opportunity. Glazer found particularly persuasive the
evidence on
segregation presented by Massey and Denton in American
Apartheid,
annotated above. Pairing Glazer's earlier and later views
would
make an excellent instructional tool--a rare and vivid demonstration of
how empirical evidence can actually change someone's mind on a
passionately held moral issue.

Argues that affirmative
action policies
promote incompetence and resentment against its intended
beneficiaries. Cites data suggesting that blacks admitted to
elite institutions under affirmative action policies cannot compete
effectively there and would do better if they attended the lower-ranked
schools for which they are qualified. Unusual for taking an
international perspective on the issues.

Cohen
offers a comprehensive critique of affirmative
action as unjust "reverse racism." The author is the University of
Michigan
professor most active in opposing the U-M's own affirmative action
policies. The second, more recent volume updates Cohen's
argument, and is paired with a defense of affirmative action by James
Sterba.

Comprehensive review of
black progress in
the U.S. Argues that white racism is largely a thing of the
past,
and that blacks have made great progress since the civil rights era,
largely due to market forces. Remaining inequalities are due
to
problems such as low black educational attainment, high crime rates,
and black family structures, that affirmative action programs cannot
remediate. Comprehensive critique of all race-based programs,
not
just affirmative action in employment and admissions, but such measures
as race-conscious election districting.

Comprehensive critique
of affirmative
action programs. Contains useful history of affirmative
action in
the U.S., and summarizes, with replies, arguments in favor of these
policies. Pojman's critique is one of the most widely
reproduced
in textbooks and anthologies, and is probably the single most useful
paper for undergraduate teaching that offers an overall review of the
arguments against affirmative action. See also Pojman's "The
Case against Affirmative Action," International
Journal for
Applied Philosophy, available online.

Affirmative Action in
Education

Affirmative action in educational settings raises
special
issues not necessarily encountered in other areas, such as
employment. (1) The rationale for AA includes not just
compensation for past and continuing discrimination, but consideration
of the educational value of diversity. (2) The Supreme Court has
specifically recognized universities as having a First Amendment right
to free speech and hence academic freedom, under which admissions and
hiring policies are included. Thus, questions about the
legality
of affirmative action policies in education must be considered in view
of First Amendment as well as the 14th Amendment and civil rights laws.
(3) Merit-based arguments against affirmative action are weaker, the
earlier in the "pipeline" affirmative action policies are applied. (a)
Few students have a choice over schools; their educational attainment
is largely a function of the resources the state has chosen to devote
to them. This in turn is a function of place of residence, which, given
pervasive housing segregation, is a function of race.
Conventional criteria of "merit" for admissions therefore do not
measure purely individual factors (talent and determination), but also
reflect many dimensions of class, race, and gender privilege.
(b)
The best rationale for awarding opportunities on the basis of merit
concern the efficiency advantages of assigning the most talented people
to perform productive tasks. But students are not employees,
they
are in school to learn more than to produce. (c) Students do
produce an educational environment, however, and so are selected in
part for what they can contribute to that environment and hence to the
education of their fellow students. However, at this point
diversity itself has been defended as a dimension of merit--that is,
being able to bring to the educational environment various perspective
shaped (not defined) by having lived in substantially different
circumstances from the majority of students constitutes part
of
students' merit for admissions purposes.

The Educational
Value of Diversity (Multiculturalism) in the
Curriculum

Articulates a rationale
for
multiculturalism, including educational reforms (expanding the canon,
relatively new disciplines of women's studies, African-American
studies, gay and lesbian studies, etc.) in terms of an ideal of the
liberal arts as advancing a cosmopolitan community, in which people can
learn from others in all walks of life. This book represents
a
comprehensive reply, based on personal observation of multicultural
education in a vast range of colleges and universities, to such critics
of "political correctness" as Dinesh D'Souza and Allan Bloom (see
below).

Levine, Lawrence. The Opening of the American Mind. (Boston:
Beacon Press, 1996).

This book by a
distinguished U.S.
historian, examines the history of the U.S. college curriculum,
demonstrating its constant flux in canons, ideals, and
presuppositions. Defends multicultural educational reforms
against critics, exposing the critics' misrepresentations of the
reforms and what preceded them.

*Lauter, Paul. "Race and Gender in the Shaping of the American
Literary Canon: a Case Study from the Twenties, " in Canons
and
Contexts. (Oxford: Oxford University Press, 1991).

Case study of
the roles of sexism and
racism in eliminating from the canon of American literature works
written by women and African-Americans.

Attacks multiculturalism
and affirmative
action in universities for promoting racial divisiveness and
undermining freedom of thought. One of the leading works in
the
movement against "political correctness" in higher education.

Bloom, Allan. The Closing of the American Mind.
(New York :
Simon and Schuster, 1987).

One of the leading works
in the movement
against "political correctness" in higher education. Argues
that
recent educational trends in universities are destroying the liberal
arts and undermining Western civilization.

The Educational Value of Diversity among Students and
Educators

Argues that all
inquirers are affected by
unconscious biases; in many areas of inquiry these biases are
influenced by the social position (race, gender, etc.) of the
inquirer. Research communities that lack diversity along
these
dimensions are ill-equipped to detect their biases. Diversity
of
researchers improves theories by opening them up to a more rigorous
critical review from more perspectives.

Criticizes the Regents
of the University of
California decision to abolish consideration of race, ethnicity, and
gender in admissions and hiring for its failure to consider and respond
to the educational value of diversity. Argues that diversity
is
not to be defended on the assumption that the meaning or value of an
individual's contribution to inquiry can be reduced to or predicted by
their social identity. Rather, discourse in a diverse
community
is valuable in providing inquirers with opportunities to change and
reinterpret the significance of their identities through exchange with
others who are differently positioned. Surprisingly
accessible
statement by a postmodernist author not usually so easy to read.

Argues that the racial
and ethnic
categories universities use to promote diversity fail to reflect
educationally relevant dimensions of diversity.
They are
not good proxies for diverse points of view; thus affirmative action
policies as actually practiced by colleges and universities can't be
easily justified with the diversity rationale. Makes an
excellent
skeptical companion piece to the others in this section, for
instructors interested in focusing on diversity arguments for
affirmative action.

Argues that there are
three distinct
values, eachessential to a multicultural community
such as a
college: (1) opposition to racism (opposition to racial domination, and
to attitudes that support it by denying the moral equality of all human
beings), (2) multiculturalism (respect for one's own and others'
cultures), and (3) community (a sense of connection across racial and
ethnic lines). Argues that these are distinct, though seldom
sufficiently distinguished, values, and explores their convergences and
possible divergences.

The most comprehensive
empirically based defense
of the diversity rationale for affirmative action available on the Web,
developed by the University of Michigan for its defense in two legal
challenges to its policies. Effectively illustrates both the
strengths and the weaknesses of the diversity defense--judge for
yourself whether the evidence of expert witness Professor Pat Gurin
changes your mind on the merits of diversity. Sympathizers
note
that she finds positive effects of diversity on an extraordinarily wide
range of educational outcomes. Skeptics observe that the
outcomes
are measured by students' self-report, raising the suspicion that
students who are liberal about race relations just think more highly of
themselves. Don't overlook the important testimony of the
other
expert witnesses.

Affirmative Action in Faculty Hiring

The best single and
comprehensive source of
arguments for and against affirmative action in faculty hiring
currently available.

Outcome Studies on
Affirmative Action

Positive Studies

Bowen, William and Bok, Derek. The Shape of the River:
Long-Term
Consequences of Considering Race in College and University Admissions.
(Princeton: Princeton University Press, 1998).

By far the most
sophisticated, empirically
grounded, comprehensive study of the outcomes of affirmative action
programs in American universities. Based on a huge database,
unlike most other commentaries, which are based mainly on anecdotal
evidence. Packed with charts and tables.
The definitive
work thus far on outcome assessment of affirmative action in higher
education. Must be consulted by anyone
offering an
opinion on the matter. The most important finding
is that
the "mismatch" hypothesis is false: black students who attend
a
more selective school do better (with respect to
graduation
rates, attainment of advanced degrees, income, satisfaction with
college experience) than their academically equivalent peers who attend
a less selective school (i.e., the schools they would attend if
affirmative action were abolished). This study is good on educational
outcomes, and post-graduation outcomes for the direct beneficiaries of
affirmative action, but considerably weaker on impacts of affirmative
action on blacks beyond those directly targeted. Too busy to read this
giant book? Read my review, "From Normative to Empirical Sociology in
the Affirmative Action Debate: Bowen and
Bokâ€™s The Shape of
the River,"
Journal of Legal Education 50 (2000): 284-305. Available on
request--see my contact information at the bottom of this webpage. For
a harsher review, see Stephan Thernstrom and Abigail Thernstrom,
"Reflections on The Shape of the River"UCLA
Law Review 46
(1999):1583-1631.

Zweigenhaft, Richard and Domhoff, G. William. Blacks
in the
White Establishment? A Study of Race and Class in America.
(New
Haven: Yale University Press, 1991).

Study of the challenges
faced by graduates
of A Better Chance, a program that has brought black students from
economically impoverished backgrounds to elite U.S. prep
schools.
Among its many findings: although ABC students started off
behind
their peers in academic preparation, they graduated at roughly the same
rates and by their senior year had a median class rank comparable to
their non-ABC peers. Pages 145-158 contain an excellent
discussion, with international comparisons, of how stigmatization can
lead to "oppositional identity" in which stigmatized students are
disaffected from school. Elite prep schools, by contrast,
give
their students a "superiority complex" that aids their academic
achievement.

Davidson, RC and Lewis, EL. "Affirmative action and
other
special consideration admissions at the University of California,
Davis, School of Medicine," Journal of the American Medical
Association(JAMA) 278(14):1153-8, 1997, Oct 8. [published
erratum
appears in JAMA 1998 Feb 18;279(7): 510].

(From the abstract:)
Twenty-year,
retrospective, matched-cohort study of affirmative action admissions at
U-C Davis Medical School. Found that graduation and failure
rates
of special admissions and regular admissions students were comparable,
as were career patterns after graduation. Concludes that
criteria
other than undergraduate grade point average and Medical College
Admission Test scores can be used in predicting success in
medical school. An admissions process that allows for ethnicity and
other special characteristics to be used heavily in admission decisions
yields powerful effects on the diversity of the student population and
shows no evidence of diluting the quality of the graduates.

(From the abstract:) Using
two large physician
surveys, finds that minority and women physicians are much more likely
to serve minority, poor, and Medicaid populations. Weaker, but
significant association exists between physician and patient
socioeconomic background. Service patterns are
sustained
over time and are generally consistent with physician career
preferences. Argues that ending affirmative action in medicine may
imperil access to care. Results do not support affirmative action based
on economic disadvantage instead of race, ethnicity, and sex.

(From the abstract:) Analyzed
data on
physicians' practice locations and the racial and ethnic makeup and
socioeconomic status of communities in California in 1990. Also
surveyed 718 primary care physicians from 51 California communities in
1993 to examine the relation between the physicians' race or ethnic
group and the characteristics of the patients they served. Found that
communities with high proportions of black and
Hispanic residents were four
times as likely as
others to have a shortage of physicians, regardless of community
income. Black physicians practiced in areas where the percentage of
black residents was nearly five times as high, on average, as in areas
where other physicians practiced. Hispanic physicians practiced in
areas where the percentage of Hispanic residents was twice as high as
in areas where other physicians practiced. After controlling for the
racial and ethnic makeup of the community, black physicians cared for
significantly more black patients (absolute difference, 25 percentage
points; P < 0.001) and Hispanic physicians for significantly
more
Hispanic patients (absolute difference,
21
percentage points; P < 0.001) than did other physicians. Black
physicians cared for more patients covered by Medicaid (P = 0.001) and
Hispanic physicians for more uninsured patients (P = 0.03) than did
other physicians. Concludes that Black and Hispanic physicians have a
unique and important role in caring for poor, black, and Hispanic
patients in California. Dismantling affirmative-action programs as is
currently proposed, may threaten health care for both poor
people
and members of minority groups.

The full text of this paper
can be obtained
through the link, which is on the Social Science Research Network
website. This literature review of economic studies of affirmative
action finds no significant evidence for the claim that affirmative
action impairs efficiency.

Finds that antidiscrimination
laws improved the
economic condition of blacks in the 1960s, and that affirmative action
has had a positive impact on employment for blacks and women. Finds no
evidence that affirmative action has resulted in firms hiring women
with lower qualifications than men. Does find evidence that affirmative
action has resulted in firms hiring racial minorities with lower
qualifications than other employees, but fails only weak evidence that
this lag in entering qualifications had an impact on minority
performance on the job. Finds that minority-owned businesses that
receive contracts under affirmative action have weaker performance, but
that these deficiencies can be corrected through technical assistance
and better vetting.

The full text of this paper,
when it was a
working paper, can be obtained through this link on the SSRN website.
(From the abstract) Authors "find that Affirmative Action increases the
number of recruitment and screening practices used by employers, raises
employers' willingness to hire stigmatized applicants, increases the
number of minority or female applicants as well as employees, and
increases employers' tendencies to provide training and formally
evaluate employees. When Affirmative Action is used in recruiting, it
generally does not lead to lower credentials or performance of women
and minorities hired. When it is also used in hiring, it yields
minority employees whose credentials are somewhat weaker, though
performance generally is not. Overall, the more intensive search,
evaluation, and training that accompany Affirmative Action appear to
offset any tendencies of the policy to lead to hiring of less-qualified
or less-productive women and minorities.

Website with full-text links
to empirical
research supporting affirmative action in higher education, including
many expert reports and amicus briefs filed on behalf of the University
of Michigan in its lawsuits, Grutter v. Bollinger
and Gratz
v. Bollinger. See, in particular, the defense of Patricia
Gurin's
controversial research in "The
Compelling Need for Diversity in Higher Education.", showing
a wide
range of positive educational outcomes of affirmative action, on the
basis of student surveys.

Outcome study of an
aggressive affirmative
action policy practiced at a large workplace. Responds to a range of
objections to affirmative action. Argues on the basis of evidence
gathered, including interviews with employees, that affirmative action
is morally permissible.

Weisskopf, Thomas. Affirmative
Action in the United
States and India: A Comparative Perspective. (Routledge,
2004).

Unusual
international comparison study offers extensive empirical evidence that
affirmative action in both the US and India has helped create a more
racially integrated elite, and, in virtue of this fact, a more
accountable and legitimate elite. At the same time, the policies have
imposed some ethnic conflict, especially in India.

Mixed Studies

Surveys the literature,
finding theoretical and
empirical support for the claim that affirmative action exacerbates
racial tensions. However, the paper also provides theoretical and
empirical support for the claim that, absent affirmative action,
conventional tools to combat discrimination, such as individual claims
under antidiscrimination laws, are not up to the task of preventing or
remedying discrimination and racial segregation.

Negative Studies

The full text of this paper
can be obtained
through this link on the SSRN website. Finds that crime rates rise when
affirmative action leads to the hiring of less qualified minority
police officers. Does not find such a relationship with the hiring of
female police officers.

The full text of this paper
is available at The
Public Interest
website, although you must search for it once you are there. Finds, on
the basis of survey research techniques designed to avoid "politically
correct" responses, that higher racial diversity on campuses is
correlated with higher reports of racial discrimination, lower
perceived work ethic among the students, and less satisfaction with the
educational experience among students. Finds strong opposition to
affirmative action among students. Concludes that racial diversity on
college campuses does not have the benefits claimed on its behalf. This
article provides a useful counterpoint to Patricia Gurin's expert
report on behalf of the University of Michigan, cited above, which
reports, on the basis of survey data, wide-ranging educational benefits
of racial diversity. A more technical presentation of the same results
was published in the International Journal of Public Opinion
Research.

Empirical study finding that
minority students
are deterred from pursuing Ph.D.'s, and hence pursuing academic jobs,
because affirmative action at the undergraduate level channels these
students into more selective schools, where they get lower grades
relative to their white peers. This depresses their motivation to
pursue graduate study, perpetuating the "pipeline problem" that
continues to keep faculty diversity below the level of student
diversity in higher education. Also rejects the role model theory that
minority professors encourage minority students to pursue academic
careers. Cole's findings are somewhat in tension with those of Bowen
and Bok, who find that affirmative action produces a big boost in the
number of black students who pursue advanced degrees, notwithstanding
its negative impact on black students' GPAs. It is possible that this
gain is generated by black students' pursuit of professional degrees
(M.D., J.D., M.B.A.) which offsets a reduction in pursuit of Ph.D.'s.
Cole's study is focused on the supply side of minority aspirants to
academic positions. It is an open question whether the positive supply
effect of moving students to less selective colleges would be offset by
the depressed demand for these students on the part of Ph.D. programs.
Such programs tend to favor applicants from more selective schools,
both because the more selective schools tend to offer more rigorous
curricula, more research opportunities with faculty, and hence better
preparation for academic careers, and because authors of letters of
recommendation from more selective schools are more likely to be known
to, and taken seriously by, faculty on Ph.D. program admissions
committees.

Argues that
affirmative action hurts black law students by placing them in
highly-ranked law schools where they can't compete. Major
recent argument for the "mismatch" hypothesis. Sander's
article is vigorously criticized by numerous scholars in the Stanford Law Review
(2005).

Two of the few studies of
affirmative action in
an international context, by a major critic of affirmative action. The
evidence is more of an anecdotal than rigorous nature, however.

Alternatives
to Affirmative Action

Many opponents of race-based affirmative action believe its
abolition will lead to a color-blind, meritocratic society in which
nonwhites face no significant race-based disadvantages. Others
acknowledge that this is not true and that without replacing it with
some alternative, U.S. society will be more segregated and blacks
especially more marginalized than before. Hence, many seek an
alternative. Class-based affirmative action appeals to those
who
believe that justice must be color-blind but not class-blind, that
blacks suffer from no unjust disadvantages that can't be traced to
class, and who are not particularly moved by merit-based objections to
affirmative action. Other alternatives are considered below.

The most authoritative,
comprehensive defense of
class-based affirmative action as a substitute for race-based
affirmative action. Argues that affirmative action is
justified
only as a remedy for poverty, not cultural differences between racial
groups. Compensatory arguments for race-based affirmative
action
wrongly attribute all black disadvantage to discrimination, when black
cultural differences may be to blame. Diversity rationales
for
race-based affirmative action may backfire by increasing stigmatization
rather than promoting tolerance.

Important empirical study
demonstrating the
feasibility of aggressive class-based affirmative action policies that
would yield selective student bodies in which 38% of students are below
the median socioeconomic status. Highly significant is their simulation
of graduation outcomes, were class-based affirmative action to be
aggressively practiced by selective schools. Contrary to claims that
students in the bottom 40% of the economic ladder would not be able to
handle the challenging curricula at selective schools, due to the
weakness of their high schools, C&R's simulation predicts that
aggregate graduation rates would actually increase
if schools
admitted lower-class students who were otherwise academically
qualified, instead of using the mismash of antimeritocratic criteria
(e.g., legacy admissions) currently in use.

Argues that class-based
affirmative action
cannot significantly increase the opportunities of the poor without
significantly reducing admissions standards at selective schools. In
practice, it will advance the prospects of some lower middle class
applicants over others. Discusses difficulties of
constructing
color-blind criteria of class-based disadvantage within
the
middle class. In practice, class-based affirmative action
will
expand opportunties to lower middle class whites at the expense of
middle class blacks, who suffer from race-specific socioeconomic
disadvantages not recognized by the policy. This will have
the
effect of enabling whites to more effectively transmit their
middle-class status to their children, while depriving blacks in the
middle-class from doing the same. Race-based affirmative
action
offers the best prospects of enabling blacks to establish an
intergenerational presence in the middle class, at least cost to the
other goals of higher education.

Geographical Affirmative Action ("Percentage Plans")

In response to the Hopwood
decision, which
prohibited race-based affirmative action at the University of Texas,
the Texas state legislature acted to limit the threat it posed to
resegregate higher education by mandating that the top 10% of
each high school class be automatically admitted to the Texas
university of their choice. This geographical standard
prevents
segregation by taking advantage of the fact that high schools
themselves are highly segregated, due to the concentration of black and
Hispanic populations in particular residential districts.
This
paper offers a preliminary assessment of this proposal.

Finds that
color-blind affirmative action policies compromise merit far more than
color-conscious affirmative action policies. "The short-run efficiency losses of
implementing color-blind affirmative action (in our sample) are four to
five times as high as color-conscious affirmative action."

One of the now numerous studies
documenting that
"top x% plans", requiring the admission of the top x% of any in-state
high school graduates to state university, have failed to live up to
their billing of improving racial diversity on selective college
campuses. To the extent that they have achieved any diversity, they are
reliant on underlying race-conscious policies, such as vigorous
recruitment from minority high schools and massively increased
financial aid. Cites to other studies making similar findings can be
found at the University of Michigan's website on Research
Supporting Affirmative Action in Higher Education.

Focus on the "truly disadvantaged"

Wilson, William Julius. The Truly
Disadvantaged. (Chicago:
University of Chicago Press, 1987.
Wilson, William Julius. When Work Disappears. (New
York:
Vintage Books, 1997).

Criticizes affirmative action
for failing to help
the most disadvantaged and for increasing racial divisiveness, thus
posing obstacles to cross-racial coalition building. Massive public
works projects, designed to bring jobs to the inner cities where jobs
have disappeared, are a better, color-blind alternative.

Owen Fiss, A Way Out: America's Ghettos and the
Legacy of Racism
(Princeton: Princeton University Press, 2003).

While not specifically
criticizing affirmative
action, this book takes up Wilson's challenge to focus on the most
disadvantaged, those who are not directly benefitted by affirmative
action. Defends aggressive state measures to enable poor blacks to move
out of the inner cities (which provide poor job and educational
opportunities, and prevent their residents from accumulating savings or
avoiding victimization from crime) and achieve racial integration in
more successful suburban neighborhoods. Contains numerous critical
responses to his proposal and replies by Fiss. See especially the
sharply worded critique by Jim Sleeper, author of Liberal
Racism. A
fresh, provocative book.

Closing the "Merit Gap" between advantaged and disadvantaged
groups

Argues that, in light of
the rollback of
affirmative action programs in higher education, the best chance for
advancing black prospects is to close the gap between blacks and whites
in performance on standardized tests. Provides data on the
persistent but declining gap, and suggests strategies for closing the
gap.

More Vigorous Enforcement of Individualized
Antidiscrimination Law

Reviews a wide range of
affirmative action
programs in employment, college admissions, and contracting, arguing
that they all betray the moral requirement that all be treated equally,
regardless of race. Argues that discrimination should be addressed only
by individualized remedies, and that more resources should be devoted
to enforcement of antidiscrimination law if racism persists after the
abolition of affirmative action.

Self-Help

Steele, Shelby. The Content of Our
Character : A New
Vision of Race in America. (New York: HarperPerennial, 1991).

Argues that black
reliance on affirmative
action reinforces black dependency on whites. Blacks should
shed
their victim's mentality and civil rights demands for white help and
focus instead on self-improvement and self-help. A
contemporary
revival of Booker T. Washington's philosophy.

Loury, Glenn. One by One from the Inside Out :
Essays and
Reviews on Race andResponsibility in America
(New York:
Free Press, 1995).

Shares with Steele's
work the interest in
reviving Booker T. Washington's individualist self-help and personal
responsibility philosophy. Although he criticizes affirmative
action policies, Loury denies that his individualistic philosophy
absolves the wider U.S. society of responsibility for ensuring equal
opportunity for poor blacks.

Letting Free Markets Solve the Problem

Argues that antidiscrimination
laws are
inefficient and fail to help their intended beneficiaries: by raising
the cost of firing members of protected groups, they increase
the
incentives of employers to not hire them in the first place.
Abolition of such laws need not lead to disaster for blacks: much
discrimination is inefficient from the employer's perspective and, in
any event, abolition would also eliminate legal challenges to
affirmative action policies.

Concise, accessible
account of several
reasons why markets don't stop discrimination: it can be an efficient
response to employee and customer "tastes" for discrimination;
statistical discrimination can be a rational (self-interested)
alternative to bearing the costs of obtaining individualized
information about job candidates; such discrimination discourages
victims from investing in human capital (they get lower returns),
thereby creating a vicious circle; discrimination motivates and
provides spurious evidence for blaming the victim.

Criticizes the tendency
of white Americans
to think that racial divisions can be overcome by interracial frienship
and personal rejection of racial antipathy. Argues that the
primary obstacles blacks face concern the dismantling of a caste
system, not making friends with whites.

Legal Cases about
Affirmative Action

This section contains five parts: (1) Important
civil rights
cases not specifically about affirmative action, but that articulate
principles and arguments often cited for or against affirmative action;
(2) affirmative action, phase I: the key Supreme Court cases that
established the constitutionality of race-conscious affirmative action;
(3) affirmative action, phase II: various affirmative action
cases, including those based on gender and veterans' status, and others
consolidating and extending the scope of permissible affirmative
action; (4) affirmative action, phase III: the key Supreme Court cases
that have cut back on the scope of permissible affirmative action
policies or that articulate principles constraining their shape; (5)
affirmative action, phase IV: key cases regarding affirmative action
that have been decided or are being considered by federal courts below
the Supreme Court. Decisions by Federal Appeals Courts are
not
binding outside the circuits in which they were heard.

Notorious decision
upholding the
constitutionality, under the 13th and 14th Amendments, of state laws
requiring racially segregated public facilities (in this case, of
Louisiana's railroad cars), provided they are "separate but
equal". This decision was overruled by Brown
v. Board of Education, 347 U.S. 483 (1954). The
case remains
relevant because of Justice Harlan's vigorous dissent, now
taken
by many to represent the correct Constitutional analysis, not only of
this case, but of the constitutional status of race-conscious
laws. Harlan's declaration that "our Constitution is
color-blind"
(559) is often cited in opposition to the constitutionality of
affirmative action programs. Less noticed is his declaration,
immediately prededing this sentence, that "in view of the Constitution.
. . [t]here is no caste here," which suggests different implications
(if color-conscious remedies are needed to dismantle caste
barriers). Another interesting feature of the case is its
stress
on analysis of the 13th Amendment (prohibiting slavery) rather than the
14th Amendment (requiring states to provide equal protection of the
laws). The 13th Amendment does not merely prohibit slavery,
but
state imposition of the "badges of servitude." Harlan exposed
the
disingenuousness of the Court's pretense that racial segregation
imposed equal burdens on whites and blacks, arguing that its manifest
intent was to stigmatize blacks. Yet, Harlan hardly disavowed
racism as a social philosophy, declaring that "every true man has pride
of race" (554), and that "The white race deems itself to be the
dominant race in this country. And so it is in prestige, in
achievements, in education, in wealth and in power. So, I
doubt
not, it will continue to be for all time if it remains true to its
great heritage. . . ." (559).

Notorious decision upholding
the constitutionality
of the internment of Japanese-Americans during Word War II, on vague
and unsubstantiated suspicions that they might be involved in espionage
and sabotage on behalf of Japan. This case has never been
overruled, and indeed is still cited as establishing the principle that
"all legal restrictions which curtail the civil rights of a single
racial group are immediately suspect" and must pass the test
of
"rigid [i.e. strict] scrutiny"(216). The Court's use of this
standard did not reflect the later Court's concern with means
(requiring narrow tailoring), focusing only on the overriding
importance of the military end in view, and deferring to the judgment
of the military and of Congress that Japanese-American internment was
necessary. Don't miss the strong dissents by Justices
Roberts,
Murphy, and Jackson. Hirabayashi v. United States,
320 U.S. 81
(1942) established the key precedent for Korematsu.
It
declared that "[d]istinctions between citizens solely because of their
ancestry" are "odious to a free people whose institutions are founded
upon the doctrine of equality." (100)

Prohibited states from
enforcing private
agreements to exclude people from buying real estate or renting housing
on account of their race. Notable for its unusually expansive
conception of state action. Since the Civil Rights Cases, 109
U.S. 3 (1883), the 14th Amendment has been held to prohibit state
action only, not the discriminatory actions of private
individuals. (The Civil Rights Cases
overturned the Civil
Rights Act of 1876, by which Congress prohibited segregation of
privately owned public accommodations, as not falling within the scope
of Congress' power to enforce the 14th Amendment. The Civil
Rights Act of 1964 achieved the same end as the 1876 act by appealing
to Congress' power to regulate interstate commerce.) Shelly
v. Kraemer took the unusual step of arguing that, although
private
individuals could still make restrictive covenants, it would violate
the Equal Protection clause of the 14th Amendment for states to enforce
them.

Perhaps the most important
Supreme Court case of
the 20th c., declared state-imposed racial segregation of schools
unconstitutional under the equal protection clause of the 14th
Amendment, thereby overturningPlessy
v. Ferguson, 163 U.S. 537 (1896). "Separate
educational
facilities are inherently unequal." (495). Although its
holding
is now a fixed point of constitutional adjudication, some have
criticized its reliance on social scientific evidence that segregation
harms the self-esteem of black children. Shouldn't racial segregation
be condemned as inherently unequal, even if black children showed
unusual psychological resilience in the face of
stigmatization?
The 1955 decision required public schools to desegregate "with all
deliberate speed" (301). In practice, the order to be
"deliberate" was used by the states to slow down and obstruct
desegregation orders, leading to a protracted, decades-long struggle to
enforce Brown.

A key case for understanding
the Civil Rights Act
of 1964, prohibiting discrimination in employment on account of race,
color ethnicity, national origin, religion and sex. Held that
the
Civil Rights Act of 1964 prohibits not only intentional racial
discrimination, but hiring and employment policies that have a
differential impact by race that (a) perpetuates the effects of past
discrimination and (b) is not justified by business
necessity.
Black plaintiffs in Griggs challenged Duke Power
Company's
requirement that applicants for its better-paying jobs pass a general
test of academic ability. The test was not valid (performance
on
the test did not predict peformance on the job), but black job
applicants were much more likely to fail it than white applicants were,
due to the history of racially segregated schools, which deprived black
applicants of an adequate education. The Court agreed that
the
1964 Civil Rights Act required private employers to remove arbitrary
obstacles to black advancement, even if those obstacles were not put in
place with the intention to discriminate against them. Griggsrevolutionized
the enforcement of the Civil Rights Act of 1964, by shifting focus away
from intent and toward a disparate impact standard. It
established that a company's failure to employ a workforce whose racial
composition reflected the racial composition of the local,
qualified
labor pool constituted prima facie evidence of a violation of the
Act. This shift set the stage for outcome-sensitive
affirmative
action policies. Should be read in conjunction with Washington
v. Davis, 426 U.S. 229 (1976).

Held that the Due Process
Clause of the 5th
Amendment (holding the Federal Government to the same equal protection
standards imposed on the states by the 14th Amendment) prohibits only
intentional racial discrimination, and does not require the government
to correct for the unintended differential racial impact of its
policies. A fascinating companion case to Griggs
v. Duke Power Co., 401 U.S. 424 (1971), because the fact
pattern
presented is nearly identical to that in Griggs,
but the
outcome was different. Black plaintiffs sued the Washington
D.C.
police department for using a reading test to screen applicants for
police jobs, arguing that the use of the test disproportionately
disadvantaged black applicants, who did not score as well on it, and
that the test was not validated. The Court declined to hold
the
Federal Government to the same disparate impact standard under the 5th
Amendment as private employers are held under the 1964 Civil Rights Act.

Following up on Washington v.
Davis' requirement
that discriminatory intent be proven before a violation of Equal
Protection is found, held that local governments are free to adopt
zoning regulations (e.g., prohibition of multi-family dwellings) with
disproportionate racial impact as long as the specific history of such
regulations does not reveal a discriminatory motive. The
chief
difficulty with the evidentiary standard articulated in Arlington
Heights for proving racist intent is that it assumes a requirement to
show specific intent with respect to the particular case in
question. It thus neglects the sorts of evidence for the
causal
impact of race on zoning regulations that can only be developed via
statistical analysis of many cases across different local government
units. In addition, it fails to inquire into deeper
motivations
behind constitutionally permitted motives--for example, whether a
legitimate concern to adopt certain zoning regulations for the
protection of property values reflects an underlying belief that the
regulations protect property values precisely by keeping out unwanted
racial groups. This opinion effectively gives local
governments
carte blanche to exclude racial groups by means of nonracial proxies,
so long as they keep quiet about their motivations, enact the
regulations before facing a specific threat of integration, and apply
the regulations consistently thereafter, regardless of race.

Affirmative Action, Phase I: Key cases establishing its
legality

Race conscious affirmative action is subject to
review
under Title VII of the Civil Rights Act of 1964 if practiced by private
or public employers and unions; Title VI if practiced by state or
private recipients of federal funds; and the Equal Protection clause of
the 14th Amendment if practiced by government units. Bakke
held that the requirements of Title VI are the same as those for the
14th Amendment, so in practice adjudication follows two tracks, one for
Title VII, the other for the 14th Amendment. The Court's
central
Title VII decision, Weber, generated a series of
subsequent
decisions that put voluntary race-based affirmative action by
private employers and unions on the firmest legal ground. By
contrast, the central cases establishing the constitutionality of
state-run race-conscious affirmative action--Bakke and
Fullilove--failed
to achieve a majority representing the opinion of the Court, and
crucially left open the question of the appropriate standard of review
(strict vs. intermediate scrutiny) for the "benign" (legitimately
motivated) use of racial classifications by the state.

The key case
establishing the
Constitutionality (and compatibility with Title VI) of race-conscious
admissions by universities. The Court found a majority for
its
holdings--permitting race-based admissions, rejecting UCal's particular
admissions system--but could not agree on a rationale.
Justice
Powell's famous opinion argues that universities may practice
race-conscious affirmative action for purposes of enhancing educational
diversity, in recognition of their First Amendment right to academic
freedom in judging what qualities of a student body would most enhance
education. However, the following constraints must be
observed: (a) racial quotas are not allowed; (b) all students
must be evaluated according to common standards, by a common admissions
committee; (c) race may not operate as an overriding factor, but only
as a "plus"on a par with "a range of factors a university properly may
consider in attaining the goal of a heterogeneous student
body."
Four other justices joined Powell in agreeing that universities may use
race-conscious affirmative action, but none joined the part of his
opinion endorsing his "diversity" rationale. Instead, they
argued
that universities may practice affirmative action to remedy societal
(private) discrimination. Powell disagreed: the
university's remedial uses of race must be confined
to
constitutional or statutory violations of equal protection and
antidiscrimination law. In a less noticed aspect of his
opinion,
Powell allowed that delivery of medical services to underserved
populations is a compelling state interest that could justify
race-based affirmative action, provided the use of race is necessary to
advance that interest. However, he rejected UCal Davis'
argument
to this effect as merely speculative, not supported by evidence. Thus, Bakke
leaves this line of argument open to future evidentiary developments.

The key case
establishing the
permissibility under Title VII of a voluntary race-conscious
affirmative action program instituted by an employer or union designed
to remedy past discrimination in employment. Upheld a
temporary
reservation for black employees of half the training opportunities for
skilled steel jobs as a means to undo racial segregation of these
positions. The case illustrates how far the Court may go in
adopting a purposive interpretation of a law at variance with its plain
meaning and a considerable part of its legislative history, in light of
evidence that Congress' purposes could not have been achieved with the
means it expressly contemplated at the time of enactment.
Title
VII prohibits, in plain language, an employer or union's acting "to
deprive any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such
individual's race" (42 U.S.C. 2000e-2), and the legislative history
reveals proponents of Title VII vigorously denying that the law would
require employers to implement racial quotas. Brennan's
opinion,
relying on a tortured reading of the legal text, is valuable for one
insight into the legislative history: that Title VII had 2
purposes: (1) to end employment discrimination, (2) to remedy
the
consequences of past discrimination so as to enable the integration of
minorities into the economy. The second purpose may sometimes
require race-based remedies. Blackmun's
concurring opinion succinctly states the practical problem at the
core of Title VII: a literal reading of the law would put employers who
had engaged in racial discrimination in an impossible bind, subject to
being dragged into court for violating Title VII whether it fails to
remedy its discrimination, or voluntarily remedies it. But it
is
absurd to interpret a law in such a way that it prevents violators from
taking voluntary action to bring themselves into compliance with it.
White Respondent Weber's reading of Title VII would require employers,
against their interest, to specifically identify all victims of their
past discrimination (thus exposing their liability for backpay), a task
that in any event is impossible under the Griggs
disparate
impact standard, which recognizes that it is not always possible to
identify those who would have been hired but for an employment practice
(e.g., recruiting new employees by relying on their connections to
current employees) that perpetuates racial exclusion.
Respondent
Weber's reading of Title VII, forbidding admission to training for
skilled positions a greater % of blacks than prevails in the qualified
labor pool, would also unjustly "lock in" the effects of prior job
segregation (given that the low % of blacks in the pool is a reflection
of prior discrimination). With this decision, the Court thus
authorized employers not only to implement a voluntary affirmative
action plan to remedy past, unadmitted if "arguable," violations of
Title VII, but (1) to redress discrimination that lies beyond the scope
of Title VII (e.g., for pre-Act discrimination), (2) in ways that
benefit blacks who may not have been victims of that
discrimination. Don't miss Rehnquist's blistering dissent,
which
offers a powerful reading of Title VII's plain meaning and legislative
intent, although it does not address the practical problem of voluntary
compliance identified by Blackmun and ignores the evidence of broader
remedial purpose evinced in Brennan's opinion.

The key case
establishing the
Constitutionality of race-conscious affirmative action in government
contracting with private businesses. Held that the Federal
Government may set aside a percentage of contracting funds for
minority-owned businesses, for the purpose of ensuring that federal
funds are not used in such a way as to perpetuate the racially
exclusionary effects of prior discrimination against minority
businesses, provided (1) the set-aside does not continue longer than
the effects of discrimination; (2) the set-aside can be
waived if
sufficiently qualified minority contractors cannot be found, or if they
charge a higher price than can be explained by their attempts to cover
costs inflated by the present effects of prior disadvantage and
discrimination; (3) a procedure is available to prevent minority
businesses that are not disadvantaged from claiming the set-aside; (4)
the set-aside does not place too great a burden on innocent nonminority
businesses. Private parties (prime contractors) can be
required
to subcontract 10% of their business to minority businesses even if
they had not been guilty of discrimination themselves. (A line of
decisions following Griggs had already established
that under
the Commerce clause, Congress may prohibit business practices
that perpetuate the effects of discrimination that, because it took
place prior to the Civil Rights Act, was not illegal. Fullilove
reasoned that Congress has the same power over private parties under
its authority to spend for the general welfare, and over states under
its 14th Amendment enforcement authority. Fullilove
thus
permits Congress to regulate state action under Griggs-style
differential impact analysis, even though Washington v. Davis
does not directly grant private parties such a cause of action under
the Equal Protection clause of the 14th Amendment.) Powell,
concurring with the Court's judgment, held that the set-aside must and
did meet the standards of strict scrutiny, but no other justices joined
him in that view. Thus, to the extent (not yet determined by
the
Court) that Fullilove's analysis depends on a less
than strict
scrutiny of Federal racial classifications, it has been overruled by Adarand.
Check out Stevens' vigorous dissent, rejecting the use of race for
backward-looking (reparations-based) remedies to
discrimination.
Stevens was later to become the Court's greatest advocate of a lax
standard of review for forward-looking (instrumental) uses of race, as
in his dissent in Wygant, accepting the role-model
justification for race-based affirmative action.

Affirmative Action, Phase II: Consolidation and Extension

All of these cases except for Metro
Broadcasting
uphold affirmative action in employment. Johnson
and Mass.
v. Feeney deal with affirmative action based on gender and
veterans' status, which are subject to a less stringent standard of
review than race-based affirmative action. However, at the
time
these cases were decided, the Court had not yet determined that
race-based affirmative action programs operated by the state are
subject to strict scrutiny.

Held that an affirmative
action program
that gave an absolute lifetime preference to U.S.
veterans of
the armed forces, regardless of the inferiority of their
qualifications, for employment in the Massachusetts civil
service
did not violate the state's duty to offer equal protection to women,
even though it effectively barred women, no matter how highly
qualified, from access to better civil service jobs.
(Petitioner
Feeney was passed over for lower-scoring veterans for numerous jobs,
including one for which she got the second highest examination score,
another for which she got the third highest score.) This case
instantiates the following principles: (1) the disparate
gender
impact of a state policy, no matter how extreme, of itself raises no
constitutional questions, as long as that disparate impact is not
purposeful (see Washington v. Davis); (2)
discrimination among
citizens in the allocation of benefits other than fundamental
constitutional rights, on grounds other than race, ethnicity, sex, or
religion, are accorded mere "rationality review"--a standard of review
so lax almost any preferential treatment, no matter how extreme, can
satisfy it; (3) if a preference based on a nonsuspect classification is
constitutional, the degree of the preference, no matter how great,
cannot make it unconstitutional; (4) states are free to discriminate on
the basis of a facially gender-neutral classification even if another
government unit (in this case, the Defense Department) has purposefully
prevented women from joining it. (At the time Mass.
v. Feeney
was litigated, the Pentagon's ceiling on female enlistment in the Armed
Forces resulted in a class of veterans only 2% female.) Don't
overlook Marshall's eloquent dissent, which demonstrates how Supreme
Court precedents on the 14th Amendment could have been taken in a
different direction.

Upheld the right of
employers and unions to
enter into a voluntary consent decree that provides a race-conscious
remedy for prior employment discrimination, even if the remedy benefits
individuals not identified as victims of that discrimination.
Follow-through on Weber, decisively affirming
Blackmun's
concurring opinion in that case, stressing the need to permit employers
to remedy their discriminatory action by voluntary means.
Rejects
the view that Section 706(g) of Title VII, which precludes a district
court from entering an order requiring the hiring or promotion of an
individual who was refused employment or promotion for any reason other
than discrimination, prevents employers' voluntary adoption of a remedy
for discrimination that has the effect of hiring or promoting
individuals who had not been discriminated against.

Upheld an EEOC imposed
racial membership
quota on the Sheet Metal Workers' union, as a narrowly tailored remedy
to stubborn and egregious racial discrimination practiced by the union,
in defiance of court order under Title VII. While Title VII
prohibits racial quotas for the purpose of racial balancing, it does
not prohibit quotas as a remedy for discrimination. Nor does
it
limit remedies to actual victims of prior discrimination:
when a history of egregious discrimination shows that mere injunctive
relief will not stop the violations, imposition of temporary race-based
affirmative action, including a quota, may be necessary to
stop
the illegal behavior. Rejects the view that section Section
706(g) of Title VII prevents a court-ordered imposition of such a
remedy, interpreting its provision to mean only that the court may not
order the employment, promotion, or admission to a union of someone who
would have been refused this even in the absence of discrimination. Sheet
Metal Workers therefore empowers courts to impose
race-conscious
remedies in the same way that Firefighters v. Cleveland
empowers employers and unions to voluntarily remediate their
discrimination through consent decrees.

Upheld the
constitutionality under the 14th
Amendment of a court-ordered temporary racial promotion quota on a
government unit (the Alabama Department of Public Safety) as a remedy
for its "pervasive, systematic, and obstinate discriminatory exclusion
of blacks" in defiance of multiple previous court judgments.
As
in Weber, approved an "accelerated" promotion quota
(in which
the ratio of blacks to whites promoted exceeds the ratio of qualified
blacks to qualified whites in the workforce, until the % of blacks in
higher positions equals the % of qualified blacks in the
workforce). Four justices argued that the quota survived
"strict
scrutiny." This case does for the 14th Amendment what Sheet
Metal Workers v. EEOC does for Title VII. More than
that, it
articulates some considerations that fall under the "narrow tailoring"
requirement for racial classifications: (1) necessity (lack
of
race-neutral alternatives to the same end); (2) flexibility (goal or
quota waived if there is a lack of qualified minorities); (3) limited
duration (preference is temporary, with a forseeable stopping-point);
(4) means-end fit (reasonable relationship between the goal/quota and
numerical representation of minorities in the qualified labor pool);
(5) burdens on innocent third parties are not too great.
(Other
cases have insisted that racial preferences not be (6) overinclusive
(help those not disadvantaged by discrimination) or (7) underinclusive
(fail to help disadvantaged nonminorities)

Upheld the legality
under Title VII of a gender-based
affirmative action plan adopted by a state actor to remedy the
traditional gender segregation of transportation agency jobs.
The
plan did not establish quotas, but allowed a woman's sex to count as a
"plus" in applying for traditionally male jobs for which she was
qualified, and established as a goal the representation of women in
traditionally male job categories in proportion to their representation
in the local labor force. Followed through on Weber's
contention that an employer need not admit to prior discrimination to
justify an affirmative action plan; a statistical disparity between the
% of women in the job category and in the local labor pool is enough to
justify the adoption of a plan. Johnson shows how
the logic of
affirmative action, as it develops, pushes very hard on the distinction
between remedying the effects of discrimination and straightforward
race- and gender- proportional representation. Johnson
distanced
itself from the latter purpose by distinguishing (1) long-term (not
controlling) from short-term goals of a program (where the long-term
goal may take proportional representation as a benchmark); (2) goals to
be attained rather than maintained
(attainment
signifies the end of discrimination, maintenance signifies an interest
in proportional representation for its own sake). Scalia
correctly observes in dissent that this case holds, without admitting
it, that an employer may adopt an affirmative action program intended
to overcome "societal discrimination" (i.e., general social attitudes
discouraging women to pursue certain occupations) rather than just its
own discrimination. Scalia intends this as a criticism,
arguing
that the antidiscrimination requirements of Title VII cannot be less
stringent than those in the 14th Amendment (which, Bakke
and Wygant
suggest, forbid a state from using racial classifications to remedy any
discrimination other than its own). If Scalia's equivalence
claim
is accepted, Johnson could be viewed in the other
direction as
a precedent for state uses of suspect classifications to remedy
societal discrimination.

Upheld the constitutionality of the FCC's policies establishing a
preference for awarding broadcast licenses to minority owners of radio
and TV stations. Held that the minority preference is
justified
in light of the state's important First Amendment interest in enabling
the expression of diverse viewpoints to the public. This is
the
only Supreme Court case other than Bakke upholding
racial
preferences on "diversity" rather than remedial grounds. A
very
odd decision, since it applied mere "intermediate scrutiny" to a racial
classification even though it postdated Croson's
move toward
strict scrutiny. O'Connor's dissent expresses important
objections to the very idea of linking race to viewpoint diversity,
arguing that it illegitimately trades on racial stereotypes and
ultimately conflicts with First Amendment requirement that the state
remain viewpoint neutral. To the extent that Metro
Broadcasting relies on intermediate scrutiny, it has been
overruled
by Adarand. Few legal scholars believe
that the FCC's
program would be upheld under strict scrutiny.

A precursor to Wygant,
limiting
remedial action available under Title VII. Held that a court
may
not override a bona fide seniority system with a race-based system for
determining layoffs just because the employer was under a consent
decree covering hiring and promotion (but not mentioning layoffs).

Held: (1) Race-based
affirmative action,
even when valid for hiring, training, and promotion, may not be
practiced for layoffs, because the burdens placed on innocent whites
are unfairly concentrated on particular individuals. (2) To
justify a race-based affirmative action employment program, the
employer must have a "strong basis in evidence" that remedial action is
necessary. (3) Rejected a "role model" theory for justifying
the
hiring of black public school teachers in proportion to the percentage
of black students in a school, as a remedy for "societal
discrimination." (The Jackson Board's theory appeared to be that black
students needed black teachers to help them cope with societal
discrimination against the students.) (4) Powell's decision is also
widely regarded as holding that government units may use racial
classifications only to remedy their own discrimination, not
discrimination in society or by other government units.
However,
his reasoning against "societal discrimination" as a ground for state
action seems to be addressed more to the peculiarities of the role
model theory and to the vagueness and indeterminateness
of
a raw appeal to "societal discrimination," without precise
identification of the specific discriminatory actions being remedied,
than to the source of discrimination in state or
private action.

Held that state and
local government
race-based affirmative action programs are subject to strict scrutiny:
they must be shown (1) to be pursuing a compelling government purpose
and (2) the use of race must be narrowly tailored: (a) neither under-
nor over- inclusive, and (2) lacking race-neutral alternatives that
could achieve the same end. Although commonly reported as a
great
blow to affirmative action programs, in requiring the highest level of
scrutiny for state and local race-based affirmative action programs,
O'Connor's opinion for the Court in fact opened up a remedial
justification for affirmative action seemingly foreclosed by Powell's
opinions in Bakke and Wygant,
which suggested that the
state may use racial criteria only to remedy its own discrimination,
and not the discrimination of private parties. O'Connor
argued
that the state has a compelling interest in not being a "passive
participant" in private discrimination. Race-based set-asides
in
contracting could therefore be justified if sufficient evidence were
produced that race-neutral contracting awards would amount to state
complicity in or perpetuation of the effects of the racially
exclusionary practices of contractors. Issues of evidence
loomed
large in this decision, which overturned the City of Richmond's 30%
contracting set-aside for minority owned businesses on account of the
city's failure to amass sufficient evidence of discrimination in
contracting requiring a race-based remedy. However, the
evidentiary issues have also been widely misinterpreted, as supposedly
reflecting the Court's skepticism about the continued existence of
racial discrimination. The point of requiring states to amass
evidence of discrimination, and to tailor their program to empirical
evidence about local conditions, is that this is evidence that the
state's purpose in establishing a set-aside for
minority
subcontractors is to avoid passive participation in the racially
exclusionary practices of contractors (a legitimate and compelling
purpose), rather than just to establish a racial spoils system (an
unconstitutional purpose).

Held that Federal
race-based affirmative
action programs, no less than state and local programs, must satisfy
the requirements of strict scrutiny. Croson had not
settled
this matter, since much of that opinion had stressed how the 14th
Amendment empowered the Federal government while constraining the
states. O'Connor, writing for the Court, justified this position on the
basis of three principles. First, skepticism: given the
dismal
history of race-based state action, the motivations of the state in
using a racial classification must be closely scrutinized by the
courts, and its mere assertion that its motives are benign cannot be
taken at face value. Second, consistency: the same
level of
scrutiny must be applied to all race-based state policies, whatever the
race of those affected by that policy. Third,
congruence:
equal protection analysis under the Fifth Amendment (which applies to
the Federal government) is the same as under the Fourteenth Amendment
(which applies to the states). To the extent (not determined
by
the Court in this decision) that Fullilove and Metro
Broadcasting relied on a less than strict scrutiny in
upholding the
race-based policies they reviewed, they are overruled.

Latest Legal
Cases on Affirmative Action:
Lower Court Decisions

Weber and subsequent Title VII cases
building on this
precedent have put private race- and gender- conscious affirmative
action plans in employment on a fairly secure legal footing; thus,
lower courts are not currently deciding cases that are likely to
unsettle legal doctrine or established practices in this
area.
Litigation is more active for 14th Amendment cases. (a)
Numerous
affirmative action plans by state employers have been litigated;
results have been mixed, with no clear trend for or against such
plans. Most litigation in this area focuses on assorted
ambiguities in narrow tailoring requirements. (b) Since Croson,
state and local set-asides for contracting have been vigorously
challenged. Results here are also mixed, but with a decided
trend
against set-asides. Most decisions in this area have focused
on
evidentiary requirements; set-asides survive only if supported by
elaborate and expensive studies demonstrating a cause for remedial
action. The key question the Supreme Court will eventually
need
to answer is how much and what kind of evidence of discrimination by
private contractors is sufficient to warrant a public contracting
set-aside. The major new development in this area is a
lower-court decision on the famous Adarand case,
upholding a
racial preference in state contracting. (c) Because
Bakke
is the only Supreme Court case dealing with affirmative action in
education, and did not contain a majority opinion, doctrine in this
area is the most unsettled. Litigation is very active, and
several highly significant cases have recently been or are being
litigated. This section therefore focuses on the major recent
lower-court cases dealing with public education, with an aside to the
unusual Wittmer v. Peters and the important Adarand
decision.

Unusual opinion by Judge
Richard Posner,
upholding a nonremedial racial preference in promotion for corrections
officers, on the ground that the state has shown that
minority
officers are needed to achieve law enforcement objectives.
The
state provided evidence that black inmates were unlikely to play the
"correctional game of brutal drill sergeant and brutalized recruit"
unless some of the black corrections officers held positions of
authority. The Supreme Court refused to review this case on
appeal, cert. denied 117 S. Ct. 949 (1997).

The latest disposition of the famous Adarand case,
which, when
reviewed by the Supreme Court (as Adarand v. Pena)
firmly
established strict scrutiny as the standard for evaluating all
government affirmative action programs. The Supreme Court
remanded the case back to the district court, instructing it to judge
it by the strict scrutiny standard. The district court ruled
that
the state's incentive to hire minority subcontractors failed strict
scrutiny in Adarand Constructors, Inc. v. Pena, 965 F. Supp.
1556
(D. Colo. 1997). In this eighth round of
adjudication, the
10th Circuit Court of Appeals reversed. It stressed the fact
that
the Supreme Court's Adarand decision insists that
some
affirmative action programs can pass strict scrutiny. It
found
that Congress has a compelling interest in redressing the effects of
current and past racial discrimination and that it had a strong basis
in evidence to conclude that such discrimination occurred in the
construction industry. The Court's summary of evidence on the
extent of discrimination in the construction industry is a worthy
reference on this issue. It also found that the design of
Congress' current program, as recently revised to meet strict scrutiny
standards--were narrowly tailored to the compelling purpose.
This
opinion stands as a exemplar of how a race-based affirmative action
program in contracting can meet strict scrutiny.

Invalidated the University of
Maryland's
scholarship program reserved for African-Americans. (1)
Applying Croson's
evidentiary demands, denied that UM had sufficient evidence that
current factors discouraging black enrollment and achievement were
caused by UM's own past discrimination: (a) UM's bad
reputation
in the black community, being tied solely to knowledge of UM's historic
discrimination, cannot justify a racial preference because such
knowledge will always be available but remedies must be
temporary. (b) UM's alleged hostile environment, due to the
hostility of white students, is a form of societal discrimination not
specifically attributable to UM's past discrimination. (2) UM's
statistical underrepresentation of blacks and lower retention and
graduation rates, [even if, in the face of weak evidence, the cause is
stipulated to be UM's own past discrimination], cannot justify the
scholarship program, which fails narrow tailoring requirements: (a) it
is overinclusive, in attracting high achieving blacks, who were not
victims of UM's past discrimination, and in being awarded to
non-Maryland blacks, when the program is alleged to be needed to remedy
the underrepresentation of Maryland blacks at UM; (b) it relied on the
role-model theory rejected in Wygant; (c) the
benchmark of
underrepresentation was determined against an arbitrarily inflated
reference pool that failed to factor out nonrace-based causes of
underrepresentation, and that hence failed to constrain the extent of
remediation to the extent of the effects of past discrimination; (d) it
failed to consider (unspecified) race-neutral alternatives. [Sorry, I
could not find a link to the full text of this opinion; the link is to
an extended summary.]

Invalidated a race-conscious
affirmative action
plan for faculty employment decisions, adopted for diversity rather
than remedial purposes. The Court viewed the case
solely
within the terms of Title VII, holding, on its reading of Weber
and Johnson, that it permits race-based employment
decisions
only for remedial purposes. Notwithstanding Bakke's
claim
that schools have a compelling interest in diversity, Title VII forbids
schools from pursuing that nonremedial interest through racially
discriminatory employment (as opposed to admissions)
policies.
Even if diversity were admitted as a valid purpose, (1) the state
provided no benchmark of adequate diversity to measure progress and
termination of the program, and thus acted arbitrarily and (2) placed
an undue burden on white petitioner Taxman through its layoff
provision. The dissent disputes the claim that Weber
and Johnson
restrict valid affirmative action plans to remedial purposes, holding
that neither case determined the outer bounds of permissible aa plans.
This case was set to go to the Supreme Court, cert. granted,
117 S. Ct. 2506 (1997), until it was settled by a financial
intervention by civil rights groups, worried that its fact pattern was
not a favorable one under which to review the general principles of
affirmative action in education. Cert dismissed,
118 S.
Ct. 595 (1997). The case had an unfavorable fact pattern for
the
resolution of a diversity claim, because it involved a layoff decision
(see Wygant), and because the % of blacks who were
teachers
exceeded their % in the population. (On the other hand, the
affirmative action plan allowed a racial preference only among equally
qualified candidates with equal seniority.)

Invalidated the University of Texas' law school's race-based admissions
program, reversing the district court's judgment that UT had compelling
interests in using race-based admissions, Hopwood v. Texas, 861 F.
Supp. 551 (W.D. Tex.1994). (1) Audaciously, the Court claims that
Powell's opinion in Bakke, permitting racial
diversity as a
compelling state interest in educational contexts, is not controlling,
because no other justice joined him in that part of his opinion; only
remedial justifications for racial classifications are
allowed.
Equating race with skin color, the Court found not even a rational
basis for connecting such a superficial characteristic to educational
outcomes. It denied that race may be used as a proxy for
socially
relevant characteristics, regarding this as an assertion of harmful,
stigmatizing stereotype. (2) The Court rejected UT's remedial claims,
arguing that (a) the law school may only remedy its own discrimination,
not discrimination in society or even in the Texas school system at
large, or even in UT at large, because it is not in a position to
measure the discrimination of other agents; (b) Following Podberesky
v. Kirwan, rejected UT's claims of bad reputation among and
hostile
environment to minorities as justifying remediation. Judge
Weiner, concurring, assumed that an educational interest in diversity
could justify a race-conscious admissions policy, but held that UT's
policy was not narrowly tailored to achieve this aim: it was
underinclusive, in that it did not include goals for all racial/ethnic
groups that could contribute to diversity; it operated too much like a
quota; and it assured only "facial diversity," not "true diversity"
(suggesting that the quest for racial diversity is a quest for skin
color diversity, which is irrelevant to education).

Invalidated Boston Latin School's race-conscious admissions
program. Half the places in the school were allocated in rank
order of test scores in a competitive examination; the other half were
allocated by proportional race/ethnic representation among those who
scored in the top 50% of all applicants. Without rejecting Bakke's
claim that diversity is a compelling state interest, the Court found
that BLS's admissions program violated Bakke's
strictures: (1) race and ethnicity were the only admissions
factors other than test scores, while the pursuit of true diversity
allows racial/ethnic status to count as but one factor among other
factors contributing to diversity; (2) race-neutral admissions on the
basis of test scores alone would yield a combined Black and Hispanic
student population of 15-20%, why does "diversity" require more?; (3)
BLS's use of proportional representation in selection shows that its
purpose was "racial balancing"--impermissible under the 14th
Amendment. The Court also rejected BLS's remedial claims,
observing that the Boston school district, although once under a
desegregation order, had been declared unified and that it had failed
to provide sufficient evidence that the currently observed racial
academic achievement gap was a vestige of the district's own past
discrimination. It rejected anecdotal evidence as
insufficient to
support claims about systemic causes of disadvantage, and statistical
evidence gathered in another district as irrelevant to the Boston
school district. Finally, it found BLS's proportional
representation admissions not narrowly tailored for remedial purposes:
causally ineffective, in not eliminating the purported cause of
disadvantage (low teacher expectations in elementary school); and
overinclusive, in admitting minorities from private schools and
nondisadvantaged white and Asian students. The opinion relies
heavily on its reading of Croson's evidentiary
requirements. The dissent articulates a laxer standard of
those
evidentiary requirements, holding that the state need only make out a
prima facie case of discrimination, and arguing that it had.

Upheld a race-conscious admissions program to an elementary school run
by the UCLA Graduate School of Education and Information Studies on
unusual instrumental grounds. The school was set up to as a
site
for research and training teachers to cope with the educational needs
of California's increasingly diverse student population.
Students
are therefore selected on the basis of their suitability for research
interests. Applying strict scrutiny, the Court ruled that the
school served the compelling state interest of improving the quality of
education in urban public schools, and that racial and ethnic criteria
were narrowly tailored to serve that interest. UCLA submitted
extensive evidence that ensuring a racially and ethnically diverse
student population was necessary to advance their goal, because such
diversity is needed to capture educationally relevant differences in
students' cultures, language proficiency, learning styles, and
important data on intergroup interaction and conflict.
Holding
that researchers have First Amendment academic freedom interests in
defining their research needs, the Court refused to second-guess
academic judgments that race and ethnicity were indispensible selection
criteria for research subjects. The Supreme Court declined to
hear this case, cert. denied 121 S. Ct. 186 (2000).

Rejected the University of
Georgia's affirmative
action program, on the ground that "the 'diversity' interest is so
inherently formless and malleable that no plan can be narrowly tailored
to fit it." Found that the University of Georgia had not
provided
compelling evidence that racial diversity advanced important
educational goals, and followed O'Connor's opinion in Metro
Broadcasting in casting doubt on any connection between
racial
diversity and the "robust exchange of ideas," upon which Powell based
his diversity defense in Bakke. Followed Hopwood
in
also finding that Powell's diversity argument is not binding
precedent. An interesting feature of the case is that the
University of Georgia gave an admissions preference to men (an extra
.25 points, compared to .50 points for being non-white). The
court rejected the gender preference on the same grounds as the racial
preference, viz. that neither racial balancing nor
gender
balancing were legitimate state purposes.

Affirms the district court
ruling above,
rejecting the University of Georgia's affirmative action policy, but on
different grounds. The Court of Appeals declined to rule on
the
validity of the diversity defense, although its review of the legal
precedents suggests skepticism about the viability of such a
defense. Instead, it chose to reject the University of
Georgia's
policy for its failure to meet narrow tailoring requirements.
A
mechanical, fixed increment of points added to an application simply
due to the applicant's race is (1) of arbitrary weight, (2) effectively
screens out applications before taking into consideration any other
dimensions of diversity that the applicant may contribute to a student
body, (3) fails to treat applicants as individuals, and (4) fails to
consider race-neutral alternatives to the same purpose of
diversity. This opinion has potential implications for the
upcoming case in the 6th circuit, Gratz v. Bollinger.
Although the 6th circuit, in Grutter
v. Bollinger, has upheld the University's Law
School admissions
policy, which does not add a fixed number of points to an application
on account of the applicant's race, it has not yet ruled on the
university's undergraduate case (Gratz), which
employs a
procedure not unlike that rejected in Johnson.

Upheld the constitutionality of the University of Washington's Law
School admissions program, on the ground (contra Hopwood)
that
Justice Powell's opinion in Bakke remains good
law. The
case has no direct practical effect for affirmative action, as the
citizens of Washington had already prohibited it by referendum in
proposition I-200. The legal importance of the decision lies
in
its argument that Powell's opinion is controlling because his diversity
argument is the narrowest ground on which the holding of Bakke
can be rationalized. This follows the legal rule that "when a
fragmented Court decides a case and no single rationale explaining the
result enjoys the assent of five Justices, 'the holding of the Court
may be viewed as that position taken by those Members who concurred in
the judgments on the narrowest grounds.'" Marks v. United
States,
430 U.S. 188 (1977). The 9th circuit's application of the Marks
rule to Bakke is disputed by Judge Friedman in Grutter
v.
Bollinger, below.

A major district court decision, upholding the University of Michigan's
current affirmative action policy for undergraduate
admissions.
Judge Duggan declared the University's earlier policy unconstitutional
for being functionally equivalent to a quota. The larger
significance of the case is as a model of how a diversity defense of
affirmative action could survive strict scrutiny. The
distinguishing character of this case is the extensive presentation of
evidence and expert testimony supporting the link between racial
diversity and educational interests, in "The
Compelling Need for Diversity in Higher Education."
None of
the other educational affirmative action cases, except for Hunter,
have presented more than conclusory testimony to the educational
importance of racial diversity, or explained the significance of race
to diversity interests. Rejects the Hopwood
Court's
reasoning that the Supreme Court has effectively eliminated diversity
as a compelling interest in educational contexts, and upholds diversity
as a compelling interest, in view of the unrebutted evidence advanced
by defendants. Contains a useful discussion of how the
University's present policy meets the narrow tailoring constraints
required by strict scrutiny, in contrast with its previous
policy. However, in a later opinion, Gratz
and Hamacher v. Bollinger, (Feb. 26, 2001), Judge Duggan
rejected
the arguments of student intervenors on behalf of affirmative action,
that the University's affirmative action program was justified as
redressing the effects of racial discrimination. Here again, the
quality of the evidence presented was crucial to the disposition of the
case. Judge Duggan argued that the intervenors had not shown
that
the University was practicing affirmative action for remedial (as
opposed to diversity) purposes, and that the current shape of its
program fit diversity interests better than remedial ones. In
addition, intervenors failed to provide persuasive evidence of past or
current discrimination by or in the University, and failed to
demonstrate that racial preferences were a necessary remedy to the
disparate impact of the use of standardized tests in admissions.

Finds that the University of Michigan Law School's affirmative action
policy violates equal protection. Grutter
is a parallel
case to Gratz, decided by Judge Bernard
Friedman. The key
argument in the case is Judge Friedman's rejection of diversity as a
compelling interest, on the ground that Marks does
not
designate Powell's opinion in Bakke as
controlling. In
addition, Judge Friedman ruled that the Law School's affirmative action
program failed the narrow tailoring requirements of strict
scrutiny--(1) its alleged diversity interest was too amorphous to
determine what numbers would meet it, (2) the policy had no
time
limits, (3) was functionally indistinguishable from a quota in
weighting race too heavily in admissions, (4) did not provide
principled grounds for selecting particular racial groups for favorable
treatment, and (5) failed to consider race-neutral alternatives to
achieving racial diversity, such as abolishing the use of standardized
tests. Also rejected intervenors' arguments that the Law
School's
policy was justified as a remedy for past and current
discrimination. The University relied on the same evidence on
the
educational value of diversity as it did in Gratz.
Gratz and Grutter together therefore
offer a model of how differently
disposed judges can rule in opposite ways on essentially the same
evidence. Judge Friedman's order that the Law School cease
using
race as a factor in admissions was stayed by the 6th Circuit Court of
Appeals in Grutter
v. Bollinger,
2001 FED App. 0103P (6th Cir., 2001).

Upholds the University of
Michgan Law School's
affirmative action policy. This is the most important
educational
affirmative action case decided since Bakke,
because it is
virtually certain to be reviewed by the Supreme Court. Grutter,
in affirming a race-based affirmative action admissions policy,
conflicts with Hopwood, which categorically rejects
affirmative
action in education. When two federal circuits issue
contradictory rulings on such an important legal matter, the Supreme
Court has a compelling reason to set the record straight. In
this
bitterly contested 5-4 opinion, the majority upheld the Law School's
policy on the following reasoning: Powell's Bakke
decision, upholding diversity as a compelling interest, is good law,
and the Law School's admissions policy is indistinguishable from the
"Harvard Plan" that Powell held up as a paradigm of an admissions
policy satisfying the narrow tailoring constraints for using racial
preferences in educational contexts. The cautious strategy of
the
court is therefore to persuade the Supreme Court not to open the
question of Bakke's authority, but to accept the
conventional
view that Powell's decision is controlling and precedent should be
followed. The strategy appeals to the Court's conservatism in
refraining from overturning prior cases on which many people have come
to rely, and which have been the basis for establishing entrenched
practices--see Planned Parenthood v. Casey 505 U.S.
833, 855
(refraining from overturning Roe v. Wade, the case
that
established womens' right to abortion). This stategy could
fail
if the Court decides to revisit the merits of affirmative action de
novo, as the dissent urges (arguing that Marks
provides no
grounds for thinking that Powell's opinion, or the opinion of the other
four justices who joined him in the judgment upholding the use of race,
is controlling).

The questions from the Supreme
Court Justices
suggest that the justices will vote as predicted, with O'Connor holding
the swing vote and keeping her cards close to her chest. The big
surprise in the arguments was the close attention paid by the Court to
the U.S. Military Academy's briefs in support of affirmative action.
Another surprise was the lack of attention paid to what Bakke
stands for, suggesting, perhaps, that the Court intends to review the
case de novo, rather than relying on precedent. The
wrangling
in the arguments over the meaning of "quotas" is mostly silly, given
that the popular definition of "quota" (any numerical goals at all,
however qualified) has no relation to the legal definition (which only
prohibits inflexible targets that cannot be waived if a lack of
qualified minorities is available to fill them).

In the most imporant
Supreme Court decision
in 25 years (since Bakke was decided), the Supreme
Court upheld
the University of Michigan Law School's affirmative action program on
the ground that it was narrowly tailored to meet the compelling state
interest of realizing the educational value of diversity in the context
of public and private schools. O'Connor, as widely predicted, held the
swing vote in this 5-4 decision. And, as the oral arguments indicated,
the Court dispensed with the mind-numbing task of trying to figure out
the precedent set under the Marks test by Bakke's
notoriously fragmented opinion, instead deciding to evaluate the merits
of the diversity defense de novo.Don't
be deceived by the uniformity of the "diversity" rhetoric flowing
through the majority opinion, however. In fact, O'Connor's decision
appeals to several additional rationalesdistinct
from the educational argument:(1)
the Military
Academy's argument that the legitimacy and hence effectiveness of its
officer corps would be diminished if it were not racially
representative; (2) an integrationist argument, that "effective
participation by members of all racial and ethnic groups in the civic
life of our Nation is essential if the dream of one
Nation,indivisible,is to be realized"; (3) a more general argument that
the legitimacy of the U.S. elite depends on its "visible"openness to
all races ("the path to leadership [must] be visibly open to talented
and qualified individuals of every race and ethnicity"). Consistent
with precedent, the opinion draws a clear distinction, muddled in
public discourse, between quotas (prohibited) and goals (permitted). It
also clarifies the "race-neutral alternatives" test for narrow
tailoring, allowing that alternatives need only be considered, not
implemented, if there is good faith reason to believe implementation
would fail to realize the school's diversity objectives or compromise
its interest in maintaining academic standards. This endorses Sam
Issacharoff's justification for affirmative action, cited above, that
it is the only way to achieve the dual goals of racial diversity and
academic excellence. The opinion raises some puzzles: (1) O'Connor
grants deference to the Law School's representation of its own benign
motives (p. 17: the Law School's "good faith" is "presumed" "absent a
showing to the contrary"), in apparant contravention of what O'Connor
once defined as the main point of strict scrutiny of racial
classifications--namely, to probe the state defendant's professions of
benign motivation with skepticism (Adarand). (This
point is
noted by Thomas in his partial dissent.). (2) What is the significance
of the Court's stated "expectation" that affirmative action will no
longer be needed to bring about diversity in 25 years? Thomas,
partially concurring, takes this to signify an absolute termination
date. This, however, would be inconsistent with the rationale of strict
scrutiny, which is that racial means must be permitted by the Court as
long as the compelling interest remains and racial means are needed to
satisfy it. I interpret it, rather, as a signal that the Court doesn't
trust educational institutions to terminate programs that have outlived
their usefulness. The Court is setting up a date with future
affirmative action litigants, 25 years hence, to revisit the issue.
Justice Scalia's intemperate dissent adds nothing of interest to the
debate, and plainly contradicts both Supreme Court precedent and the
original intent of the Framers of the 14th Am. in declaring a
categorical prohibition of state-sponsored racial discrimination. Focus
instead on Justice Thomas' much more interesting partial dissent,
opening with the forceful words of Frederick Douglass. Thomas'
interpretation of Douglass' insistence that white attempts at
benevolence rather than justice toward blacks do them harm (by
expressing and promoting patronizing attitudes, stigmatization, and
policies that hook blacks into underachieving dependency, claiming
benefits on the ground of victimization and pity rather than
achievement) go to the core of Thomas' moral objections to affirmative
action. (They are not, however, Constitutional objections, since
unintended racially harmful effects are not unconstitutional; under Washington
v. Davis, only invidious racially discriminatory purposes
are.)
Note in particular Thomas' claims on behalf of the beneficial effects
of de facto racially segregated Historically Black Colleges on black
students' achievement. He both takes them seriously as a ground for
preserving the racially specific mission of the HBC's (see his opinion
in Fordice), and denies that they could justify
racial
discrimination--thereby exposing the double-edged sword of relying on
"diversity" as a 1st Amendment rationale for affirmative action: what
if racial homogeneity were appealed to as a 1st Amendment ground for
keeping out minority groups?In
contrast with
Thomas' ringing and forceful critique of affirmative action, the
dissents of Rehnquist and Kennedy focus on legal minutia.

This companion case to Grutter
v. Bollinger,
above, rejected by a 6-3 vote the University of Michigan College of
Literature, Science, and the Arts affirmative action admissions
program, on grounds of failure to narrowly tailor its use of racial
means to the state's compelling interest of diversity. The Court's main
objection to the U-M's undergraduate policy is that its mechanical
"point system," which automatically grants every black, Hispanic, and
Native American applicant 20 points in admission, is too crude and
mechanical to satisfy the requirement that each applicant's
contribution to diversity must be subject to individualized review.
From a legal point of view, this case is less significant than Grutter.
However, it will certainly require many schools across the country to
revise their admissions systems, and increase the costs of admissions
programs that directly seek racial diversity in their student bodies.

After
the 5th circuit overturned University of Texas's affirmative action
program, the Texas state legislature instituted a "top 10% plan",
admitting the top 10% of each Texas high school graduating class to UT.
This yielded a somewhat racially diverse class by race-neutral
means, by taking advantage of de facto
racial segregation in Texas high schools. In practice, the
diversity yield for Latino students was much better than for blacks,
because Latino students are more heavily segregated than blacks in
Texas public high schools. After Grutter v. Bollinger
upheld the constitutionality of race-based affirmative action, UT
modified its admissions policy to by adding a race-conscious
affirmative action policy for students who fall short of the top 10%,
to improve its diversity. This time, the district court and the
5th Circuit upheld UT's policy. However, this decision has been
appealed to the Supreme Court, which heard oral arguments on Oct. 12,
2012 and will render a decision in 2013.

Contains links to thousands
of other resources
related to prejudice; surveys, interactive demonstrations and
exercises, a directory of experts on prejudice and discrimination, and
much more. How sexist are you? Take the Ambivalent Sexism inventory. Do
you harbor unconscious biases in favor or against various race, age,
etc. groups? Take the Implicit Association Test. Get teaching tips on
how to present controversial subject matter to students.

Website by
Elizabeth Anderson, the author of this webpage, and Jeff Jones.
Contains census maps of major U.S. metro areas, displaying high degrees
of racial segregation, explaining causes and consequences of
segregation, information on disenfranchisement and voting rights, etc.
A principal feature of this website is the ability of the browser to
"flash" among different census maps of the same territory with a flick
of the mouse, enabling a vivid demonstration of the segregation of
different racial groups and the high correlation of segregation with
income.

Excellent website by Curtis
Crawford, pairing
arguments for and against affirmative action, and discussing major
legal cases on affirmative action. Crawford, an opponent of affirmative
action, sometimes provides the rebuttals to arguments in favor.

In 1995, President
Clinton ordered a
comprehensive review of federal affirmative action programs, under the
slogan "mend it, don't end it." This is the report that
resulted
from his order. Useful for the numerous citations to
empirical
research on the need for and impact of affirmative action programs.

The USCCR is an
independent investigating
commission, with no enforcement power, that investigates alleged civil
rights violations around the country. Check out their
extensive
publications on all aspects of civil rights, including work for
Americans with Disabilities and reports on problems facing overlooked
minority groups, such as Arab-Americans.

Bibliographic reference
on race, racism,
gender, sexism, and affirmative action. Huge list of
citations
with many links to brief articles. Stresses the variety of
opinions. Extremely well organized by theme; comprehensive in
scope.

Perspectives on
diversity from someone who
runs diversity workshops for businesses and nonprofit
institutions. Useful for seeing how diversity is promoted in
the
business sector. Links to many other diversity sites, alas
without annotation to guide the browser.

Contains references to sources
on diversity,
affirmative action education, etc., that are recommended by scholars
and experts in their fields. The scope of the Infography
ranges
far beyond affirmative action issues, to numerous fields of general
interest.

Think-tank, headed by
Linda Chavez,
offering numerous papers from a conservative point of view on
affirmative action, immigration issues, etc. Promotes an
assimmilationist ideal for immigrants, and argues that Latino
immigrants by and large aspire towards and meet that ideal.

The Michigan Civil Rights Initiative, a
proposed Michigan constitutional amendment to ban affirmative action,
passed Nov. 2006. While formally independent
from
the campaign for the MCRI, and officially dedicated to promoting fair
debate
on its merits, this website is run by supporters of MCRI, as its
content reveals. The site now looks ahead to what should be
done in a post-affirmative action state.

Website of
opponents of the Michigan Civil Rights Initiative and defenders of
affirmative action in Michigan. Considers what can be done to
promote diversity in the wake of the passage of MCRI, which banned
affirmative action as practiced by government bodies in the state.